YLR 2021 Judgments

2021 Y L R 169

[Federal Shariat Court]

Before Dr. Syed Muhammad Anwer, J

SHAHID ULLAH---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeal No. 3-I of 2020, decided on 21st September, 2020.

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

----S. 17(4)---Penal Code (XLV of 1860), Ss.302 & 324---Criminal Procedure Code (V of 1898), S. 367--- Haraabah--- Appreciation of evidence---Language and contents of judgment---Scope---Accused was charged that he made firing on the brother of complainant, who was hit and died on the way to hospital---Record showed that as per allegation and contents of FIR, initially the case was rightly got registered under Ss.302 & 324, P.P.C., but later on erroneously converted into S. 17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, Haraabah, which resulted into miscarriage of justice---Trial Court failed to pass judgment fulfilling the requirement of S. 367, Cr.P.C., which required that a judgment must contained therein points of determination and reasons for the decision thereupon---Provision of S. 367, Cr.P.C., was mandatory---Judgment not showing the points for determination of decisions thereon was not a "judgment" in the eyes of law---Impugned judgment was silent about the fact under which provision of law the accused was convicted and the punishment to which he was sentenced---Failure to specify the points for determination as required under S.367, Cr.P.C. was an omission which was not curable under S. 537, Cr.P.C. and absence of decision on the points for determination and reasons in the judgment amounted to an illegality which prejudiced the case of the accused---In the present case, no offence or provision of P.P.C. under which the accused had been convicted and sentenced was mentioned, hence, it was not clear that under which provision of P.P.C. the accused was sentenced---Appeal against conviction was allowed, in circumstances, by setting aside the impugned judgment and the case was remanded to the Trial Court for de novo trial.

Rafiullah v. The State 2006 SCMR 1594; Muddassar alias Jimmi v. The State 1996 SCMR 3; Abdullah Jan v. The State and others 2019 SCMR 1079 and Farrukh Sayyar and 2 others v. Chairman NAB and others 2004 SCMR 1 rel.

(b) Criminal trial---

----Charge---Duty of court---Primary duty of the court was to see carefully whether the charge had been framed properly---If charge was not properly framed, it was the duty of the Trial Court to rectify the same

Shah Nawaz v. The State 1992 SCMR 1583; Murad Baloch alias Michel v. The State 2011 SCMR 1417; Sahib Khan and 4 others v. The State and others 1997 SCMR 871 and S.A.K Rehmani v. The State 2005 SCMR 364 rel.

(c) Criminal trial---

----Evidence---Strong unimpeachable evidence---No one should be construed into a crime on the basis of presumption in absence of strong evidence of unimpeachable character and legally admissible one.

(d) Criminal trial---

----Appraisal of evidence---Principle---Heinousness of offence---Scope---Mere heinous or gruesome nature of crime would not retract the court of law in any manner from the due course to judge and make the appraisal of evidence in a laid down manner.

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

Barrister Babar Awan, Assistant Advocate General, KPK for the State.

2021 Y L R 1130

[Federal Shariat Court]

Before Muhammad Noor Meskanzai, C.J. and Dr. Syed Muhammad Anwer, J

MIAN BUX and others---Appellants

Versus

The STATE---Respondent

Jail Criminal Appeals Nos. 11/I, 12/I and 13/I of 2019, decided on 16th December, 2020.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 337-F(iii), 392 & 34--- Qatl-i-amd, attempt to commit qatl-i-amd, ghayr - jaifah-mutalahimah, robbery, common intention---Appreciation of evidence---Prosecution case was that the accused while armed with deadly weapon in furtherance of common object entered into the house of witness and robbed gold ornaments weighing 1½ tola and cash of Rs. 10,000/-, the villagers chased all the accused and encounter took place and in the result of their firing, brother of complainant and co-accused died, while a witness received injuries---Statements of prosecution witnesses revealed that the same were consistent, coherent and confidence inspiring---Witnesses stuck to their gun and could not be shaken and shattered despite lengthy cross-examination---Defence failed to point out a single contradiction, omission or improvement---Moreover, nothing favourable to defence or fatal to prosecution could be noticed---No improvement, omission or contradiction was found---All the witnesses had supported each other not only on material rather on minute points, despite the fact, that the statements were recorded after considerable delay---Trial Court dealt with evidence by strictly adhering to the principles governing the law on the subject---Material available on record were appreciated, assessed, analyzed and evaluated in golden scales---Formulated pointes were resolved with reasons by referring to relevant material/evidence leaving no room for any other conclusions, except the one i.e. the guilt which was natural, legal, logical and the only conclusion in the circumstances of the case---Appeal was dismissed accordingly.

Raja Muhammad Anwar, Mrs. Aftab Bano and Ms. Saleha Naeem Ghazala for Appellants.

Zahoor Shah, Additional Prosecutor General, Sindh for the State.

2021 Y L R 1243

[Federal Shariat Court]

Before Muhammad Noor Meskanzai, C.J. and Dr. Syed Muhammad Anwer, J

Mst. NASEEMA BIBI---Appellant

Versus

MURAD and another---Respondents

Criminal Appeal No. 4-P of 2019, decided on 29th October, 2020.

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

----S. 7---Criminal Procedure Code (V of 1898), S. 367---Commission of offence of Qazf---Appreciation of evidence---Appeal against acquittal---Tazkiyah al-Shuhood in the witnesses---Language and contents of judgment---Scope---Accused was charged for levelling allegation containing imputation of zina against the complainant---Record showed that the Trial Court acquitted the accused on the ground of absence of Tazkiyah al-Shuhood in the witnesses of the prosecution declaring it as a mandatory provision in any case of Hadd, however, the judgment was silent about the fact as to how the Trial Court reached to the conclusion that Tazkiyah al-Shuhood was missing from the prosecution witnesses---Correctly, the assessment of Tazkiyah al-Shuhood of the prosecution witnesses was very relevant and important in cases of Hadd, but at the same time, the Trial Court was supposed to give plausible and cogent reasons for declaring any witness, who did not fulfil the standards of Tazkiyah al-Shudood---Circumstances established that the impugned judgment did not fulfil the mandatory requirements of S.367, Cr.P.C., thus was not sustainable---Appeal was allowed by setting aside the impugned judgment and case was remanded to the Trial Court for re-writing of judgment by fully adhering to mandatory provisions contained in S.367, Cr.P.C.

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

----S. 7---Criminal Procedure Code (V of 1898), S. 367---Commission of offence of Qazf---Appreciation of evidence---Appeal against acquittal---Delay of about one month in lodging the FIR---Effect---Language and contents of judgment---Scope---Accused was charged for levelling allegation containing imputation of zina against the complainant---Record showed that report had been lodged after a delay of about one month---Trial Court observed that it was enough time for deliberation and consultation on the part of the complainant for false implication of the accused---Said approach of the Trial Court which conducted the trial of Qazf was utterly misplaced and wrong due to the nature of the alleged offence---Unlike other criminal cases, in Qazf the honour, reputation, respect, social norms and values associated with the victim and her whole family were deeply involved, hence, delay in filing complaint not only natural but permissible in Islam---Impugned judgment not fulfilling the mandatory requirements of S.367, Cr.P.C., thus, was not sustainable---Appeal was allowed by setting aside the impugned judgment and the case was remanded to the Trial Court for re-writing of judgment by fully adhering to mandatory provisions contained in S.367, Cr.P.C.

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

----S. 7---Criminal Procedure Code (V of 1898), S. 367---Commission of offence of Qazf---Appreciation of evidence---Appeal against acquittal---Medical evidence---Language and contents of judgment---Scope---Accused was charged for levelling allegation containing imputation of zina against the complainant---In the present case, the Trial Court ignored the negative pregnancy test, which was the most relevant medical report in such case---Contents of the ultrasound report were clearly in favour of the claim of complainant/appellant showing her not pregnant---Trial Court disregarded the ultrasound report for containing a typographical error in date written on it---Circumstances established that the impugned judgment did not fulfill the mandatory requirements of S.367, Cr.P.C., thus, was not sustainable---Appeal was allowed by setting aside the impugned judgment and the case was remanded to the Trial Court for re-writing of judgment by fully adhering to mandatory provisions contained in S.367, Cr.P.C.

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

----S. 7---Criminal Procedure Code (V of 1898), S. 367---Commission of offence of Qazf---Appreciation of evidence---Appeal against acquittal---Language and contents of judgment---Scope---Accused was charged for levelling allegation containing imputation of zina against the complainant---Record showed that the Trial Court wrongly presumed that father-in-law of the complainant/ appellant was also the husband of daughter of accused, whereas on the contrary the contents of the statements of the witnesses and the cross-examinations revealed that the daughter of accused was the step-mother of the complainant/appellant---Due to said mis-reading of evidence, the reaching of Trial Court at a wrong conclusion was obvious---Trial Court had also completely ignored the evidence of SHO, who in his statement clearly stated that the accused came to him in Police Station on 05.03.2015, first he gave an application against complainant containing allegation of zina and doing abortion---Said application was returned to him because it contained the allegation of zina---Said statement was discussed by the Trial Court but no inference was drawn from it, the Trial Court committed non-reading of the material evidence of the case by just ignoring the same---Record transpired that the impugned judgment was violative of the mandatory provisions contained in S.367, Cr.P.C., because the Trial Court utterly failed to formulate the points for determination as required by that section and decision thereon with reasons---Circumstances established that the impugned judgment not fulfilling the mandatory requirements of S.367, Cr.P.C., thus was not sustainable---Appeal was allowed by setting aside the impugned judgment and the case was remanded to the Trial Court for re-writing of judgment by fully adhering to mandatory provisions contained in S.367 Cr.P.C.

Sanaullah v. The State PLD 1991 FSC 186and Sahab Khan and 4 others v. The State and others 1997 SCMR 871 rel.

Abdul Wali Khan for Appellant.

Zakir Tareen for Respondent No.1.

Ms. Abida Safdar, Assistant Advocate General, Khyber Pakhtunkhwa for the State.

2021 Y L R 1911

[Federal Shariat Court]

Before Muhammad Noor Meskanzai, C J and Dr. Syed Muhammad Anwer, J

MOULA BUX alias MOULI---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeal No. 9/I of 2020, decided on 15th February, 2021.

Penal Code (XLV of 1860)---

----Ss. 302(c) & 201---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(3)---Criminal Procedure Code (V of 1898), S. 367(5)---Qatl-i-amd, causing disappearance of evidence of offence, zina-bil-jabr---Appreciation of evidence---Sentence, quantum of---Scope---Accused was charged for committing the murder of daughter of complainant and then putting her on fire---Record showed that the Trial Court opted for cl. (c) of S.302, P.P.C., without dilating how S.302(c) was attracted---Trial Court mechanically and without bearing in mind the circumstances that justified the applicability of S.302(c) concluded that the accused was guilty under S.302(c), P.P.C.---Legally, none of the conditions that were sine qua non for applicability and attraction of cl. (c) of S.302, P.P.C. were available in the case---Federal Shariat Court observed that proposing sentence was not the idiosyncrasy or sweet will of the judge---In case of multiple choices provided for an offence qua the quantum of sentence, to award sentence whatever was pleased to him rather, on finding the accused guilty of the offence, the court was required to weigh, assess, evaluate and determine what should be quantum of the sentence that was viable, justified and warranted by the circumstances of the case, in such state of affairs the judgment was defective and not sustainable at all as it clearly run contrary to the mandatory requirements of S.367(5), Cr.P.C. leaving with no other option but to set aside the impugned judgment---Trial Court was required to have answered the charge under S.10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, whether the accused was acquitted or convicted---Said aspect of the matter remained unattended---Same was the position for not formulating point for determination qua the charge framed under S.10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979---In such circumstances, present case was one for re-writing of judgment afresh after hearing the parties---Appeal was allowed and the case was remanded to the Trial Court with the direction to re-write the judgment after hearing the parties preferably within a period of two months.

Muhammad Aslam and others v. The State and another PLD 2009 SC 777 and Abdul Salam v. The State 2000 SCMR 338 rel.

Anees Muhammad Shahzad for Appellant.

Zafar Ahmed, Additional Prosecutor General, Sindh for the State.

2021 Y L R 1979

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah, J

MUHAMMAD HANIF---Petitioner

Versus

The STATE---Respondent

Criminal Revision No. 4-K of 2019, decided on 7th October, 2019.

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

----Arts. 3 & 4---Possessing intoxicant---Appreciation of evidence---Benefit of doubt---Prosecution case was that 230 kilograms of bhang filled in 12 bags was recovered from the vehicle of accused---Cumulative assessment of evidence on record and overall analysis of material on record reflected that the case of the prosecution hinged on testimonies of four Police Officials wherein they had shown recovery of contraband narcotic from a vehicle driven by accused---No other person was found in the said vehicle, therefore, by no stretch of imagination it might be considered the property of driver---No evidence with regard to imports, exports, manufacture, sold or to serve any intoxicant had been brought on record against the accused---Appeal against conviction was allowed, in circumstances.

Arshad Mehmood Anjum v. The State 2013 MLD 1068; Syed Afshan v. Syed Farukh Ali and 3 others PLD 2013 Sindh 423; Ch. Muhammad Ashraf v. State 2006 PCr.LJ 518 and Pakistan Institute of Labour Education and Research and another v. Province of Sindh and others 2017 YLR Note 343 ref.

(b) Criminal trial---

----Benefit of doubt---Principle---If any single or slightest doubt is created, benefit of same must go to the accused.

(c) Criminal trial---

----Benefit of doubt---Principle---Benefit of doubt would go to the accused, regardless of fact whether accused had taken any defence plea or not.

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

----Arts.3 & 4---Sindh Prohibition Rules, 1979, R. 6---Possessing intoxicant---Appreciation of evidence---Benefit of doubt---Delay in sending the recovered intoxicant for chemical analysis---Illegality committed in course of investigation could not affect competence and jurisdiction of Court---Prosecution case was that 230 kilograms bhang filled in 12 bags was recovered from the vehicle of accused---Recovery of contraband/intoxicant was allegedly made from a vehicle on 20.10.2018 at 04.30 pm---Chemical Examiner Report reflected that it was dispatched to the Chemical Examiner for analysis on 17.12.2018, thus, there was delay of 57 days in sending a common sample of recovered contraband intoxicant contained in 12 bags---Rule 6 of the Sindh Prohibition Rules, 1979 provided that an Officer/incharge of a Police Station shall take charge of and keep in safe custody, pending the orders of Magistrate or a Prohibition Officer all articles seized under the Prohibition (Enforcement of Hadd) Order, 1979, which might be delivered to him and shall allow the Prohibition Officer to affix his seal to such articles and to take samples thereof---In the given circumstances of the case, R. 6 had been violated as the prosecution was bound to prove safe custody and establish secure transmission of samples to the office of the Chemical Examiner---Appeal against conviction was allowed, in circumstances.

Amjad Ali v. The State 2012 SCMR 577; Ikramullah and others v. The State 2015 SCMR 1002 and The State v. Imam Bakhsh and others 2018 SCMR 2039 rel.

Qadir Khan Mandokhel for Petitioner.

Zafar Ahmed Khan, Additional Prosecutor General Sindh for the State/Respondent..

2021 Y L R 2014

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah, J

ALI GHULAM---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos. 23-I and 24-I of 2019, decided on 16th January, 2020.

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

----Arts. 3 & 4---Possessing intoxicant---Appreciation of evidence---Benefit of doubt---Delay of about five hours in lodging FIR---Scope---Prosecution case was that 5064 bottles of wine were recovered from the dumper belonging to the accused persons---Record showed that the incident took place at 2:30 p.m. and the report was lodged at 7:30 p.m. with no explanation whatsoever---Not only there was no explanation, rather the statement of the complainant as well as recovery witness created more doubt regarding veracity of time qua lodging report---Recovery witness stated that three hours were consumed in whole proceedings at place of incident whereas complainant stated that they consumed seven hours---As per the statement of recovery witness, there was delay of two hours without explanation---If complainant was believed than at 7:30 p.m. he was not in police station, as he remained busy up to seven hours i.e. 2:30 to 9:30 at venue, not only the delay remained unexplained, rather the very veracity of the FIR became suspicious and doubtful---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Arts. 3 & 4---Possessing intoxicant---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Prosecution case was that 5064 bottles of wine were recovered from the dumper belonging to the accused persons---Prosecution produced three witnesses to prove its case---Recovery witness stated that 538 bottles of different kinds of wine were recovered through recovery memo whereas the recovery memo spoke recovery of 5064 bottles---Recovery witness was neither declared hostile nor the second witness to recovery memo was produced---Investigating Officer admitted in cross-examination that he did not examine the case property---Complainant stated that they recovered 211 sacks containing 5064 bottles of different brands of wine---No consensus was noticed among the witnesses on quantity i.e. number of bottles, rather their statements were divergent, contradictory and conflicting---Investigating Officer was silent regarding number of bottles and statement of recovery witness and complainant were contradictory with each other and irreconcilable to the extent that if one piece of evidence was believed that was bound to belie the other---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

(c) Criminal trial---

----Witness---Sole statement of witness---Scope---Sole and single statement of witness was sufficient to sustain capital sentence, provided it rang true and inspired confidence.

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

----Arts. 3 & 4---Possessing intoxicant---Appreciation of evidence---Benefit of doubt---Delay of about more than fifteen months in conducting the test of liquor---Effect---Prosecution case was that 5064 bottles of wine were recovered from the dumper belonging to the accused persons---Report of Chemical Examiner revealed that the samples were sent on 13.11.2018 and the test perhaps was conducted on 10.03.2020, there was no explanation for that delay which was fatal for prosecution---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Arts. 3 & 4---Criminal Procedure Code (V of 1898), S. 103---Possessing intoxicant---Appreciation of evidence---Benefit of doubt---Non-association of private witnesses---Scope---Prosecution case was that 5064 bottles of wine were recovered from the dumper belonging to the accused persons---Record showed that despite prior information, the prosecution did not attempt to associate any private person to attest recovery proceedings---Recovery witness stated that complainant asked 08/10 persons to become witnesses of incident but they declined---Complainant stated that he had not associated any private witness on the spot---Recovery witness stated that the police unloaded and loaded the contraband items whereas complainant stated that vehicle was unloaded by labourers arranged by him---Federal Shariat Court observed that if that was the position, why the said labourers were not associated with recovery proceedings as witness---Non-compliance of mandatory provision of S.103, Cr.P.C., was illegally ignored by Trial Court---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Arts. 3 & 4---Possessing intoxicant---Appreciation of evidence--- Benefit of doubt--- Prosecution case was that 5064 bottles of wine were recovered from the dumper belonging to the accused persons---Record showed that neither the case property nor the alleged samples were produced before the court to be identified and articled, hence another glaring irregularity---Trial Court without ascertaining the fact as to how the other two persons except the driver without collecting any incriminating material against them could have been saddled with the commission of the alleged offence--- Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

Barrister Raja Muhammad Arslan, for both Appellants (in Criminal Appeals Nos. 23-I and 24-I of 2019).

Farman Ali Kansaro, Additional Prosecutor General, Sindh for the State.

2021 Y L R 2301

[Federal Shariat Court]

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

ABDUL MAJEED alias MUHAMMAD IQBAL---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeal No. 10/K of 2018, decided on 5th July, 2019.

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

----Ss. 302(b), 394, 337-H(2) & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Qatl-i-amd, voluntarily causing hurt in committing robbery, rash and negligent act, common intention, haraabah---Appreciation of evidence---Identification of accused---Scope---Prosecution case was that accused along with co-accused, armed with pistols, robbed a motorcycle from complainant and his brother and on resistance, the accused fired at them, resulting in the death of brother of complainant---Record showed that the FIR was lodged with promptitude and the accused had been nominated with specific role---Occurrence took place at night time but according to the statements of witnesses the accused were open-faces, therefore, the accused being already known to the prosecution witnesses was clearly identified in the light of electric bulb lit at that time besides the light of motorcycle, therefore, the identification of the accused with specific role in the FIR could not be doubted---Two witnesses available at the site also identified and recognized the accused---Perusal of the statements of witnesses revealed that there was no contradiction, dishonest improvement or material omission to justify the discarding of their statements---Defence had not been able to bring on record either any contradiction nullifying the impact of the statements or dishonest improvements justifying any interference for false booking of the accused---Identification of the accused with the specific role stood established beyond any reasonable doubt in the given circumstances of the case---Circumstances established that findings so recorded by the Trial Court against the accused were not open to any legal exception---Appeal was dismissed accordingly.

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

----Ss. 302(b), 394, 337-H(2) & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Qatl-i-amd, voluntarily causing hurt in committing robbery, rash and negligent act, common intention, haraabah---Appreciation of evidence---Minor discrepancies in the case of prosecution---Scope---Prosecution case was that accused along with co-accused, armed with pistols, robbed a motorcycle from complainant and his brother and on resistance, the accused fired at them, resulting in the death of brother of complainant---Record showed that there might be some meager, minute and minor differences between the statements of the witnesses in terms of distance among the accused, victim and witnesses but that was not sufficient to lessen the weight of statements---Admittedly, after three to four years of the incident, the cross-examination was conducted so in such circumstances if one witness said the distance was ten paces and the second said it was fifteen feet, so in such circumstances such a minor discrepancy was bound to be ignored---Difference of five to ten minutes regarding the incident was also immaterial as in such a situation, neither one was supposed to look at his watch nor was expected to weigh and measure the paces and distance---No major contradiction in the statements of the witnesses, hence, the statements of the witnesses, which were straight forward, trust worthy and confidence inspiring, could not be discarded or ignored on such feeble grounds---Circumstances established that findings so recorded by the Trial Court against the accused were not open to any legal exception---Appeal was dismissed accordingly.

(c) Criminal trial---

----Witness--- Related witnesses---Reliance---Scope---Mere relationship itself is no ground to discard the testimony of a witness, however, the relationship could not be ignored, if there is a motive to falsely book an accused.

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

----Ss. 302(b), 394, 337-H(2) & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Qatl-i-amd, voluntarily causing hurt in committing robbery, rash and negligent act, common intention, haraabah---Appreciation of evidence---Prosecution case was that accused along with co-accused, armed with pistols, robbed a motorcycle from complainant and his brother and on resistance, the accused fired at them, resulting in the death of brother of complainant---In the case in hand the venue was not disputed as the site plan, prepared by the prosecution, suggested the same site where the incident took place and pointed out---Blood taken from the place of occurrence and the empties collected by the Investigating Officer left no room for doubt that the victim was murdered at the place that found mentioned in the FIR---Recovery of motorcycle from the possession of accused was another corroborative piece of evidence---Ocular testimony regarding the seat of injuries and number of injury stood corroborated by medical evidence---Defence, in such circumstances, had not been able to point out any major contradiction or discrepancy warranting discarding the evidence brought against the accused---Admittedly, there was no confrontation of the statements recorded by the witnesses qua their statements recorded under S.161, Cr.P.C.---High Court observed that to disbelieve the statement, there must be glaring contradiction in the statement itself showing the fact that if one piece of the statement was believed that belied the other part of the statement or if the statement of one of the eye-witness was believed that clearly belied the statement of other witness, so, in that type of case though no confrontation be made, yet the court might be in a position to discard the testimony but in the present case such position was not available---Circumstances established that findings so recorded by the Trial Court against the accused were not open to any legal exception---Appeal was dismissed accordingly.

Muhammad Hassan v. The State PLD 1982 Lah. 577; Muhammad Shafi and another v. The State PLD 1968 Lah. 869; Beekho alias Imam Bux and 2 others v. The State 1973 PCr.LJ 896; Ghulam Nabi Sub-Inspector Police and 10 others v. Shaukat Ali and another PLD 2007 Lah. 368; Mehr Khan v. The State 2003 SCMR 673; Tariq Ahmed alias Tahri v. The State 2004 SCMR 957; Muhammad Munir v. The State 2004 SCMR 662; Waqar Ahmed v. Shaukat Ali and others 2006 SCMR 1139; Abdul Majeed v. The State 2006 SCMR 1953; Muhammad Iqbal v. The State 2006 SCMR 216 and Sher Zaman v. The State 2005 SCMR 1890 ref.

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

----Ss. 302(b), 394, 337-H(2) & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Qatl-i-amd, voluntarily causing hurt in committing robbery, rash and negligent act, common intention, haraabah---Appreciation of evidence---Recovery of weapon of offence and crime empties---Scope---Prosecution case was that accused along with co-accused, armed with pistols, robbed a motorcycle from complainant and his brother and on resistance, the accused fired at them, resulting in the death of brother of complainant---Of-course, the empties and the pistol were sent to Ballistic Expert together---Such piece of evidence was discarded---When said piece of evidence was discarded, yet rest of the straight forward and ocular evidence could not be discarded or rejected merely because of rejection of that corroboratory piece of evidence---Lengthy cross-examination was conducted but the witnesses stuck to their gun and their testimonies could not be shaken---Circumstances established that findings so recorded by the Trial Court against the accused were not open to any legal exception---Appeal was dismissed accordingly.

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

----Ss. 302(b), 394, 337-H(2) & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Criminal Procedure Code (V of 1898), S.340(2)---Qatl-i-amd, voluntarily causing hurt in committing robbery, rash and negligent act, common intention, haraabah---Appreciation of evidence---Examination of accused---Scope---Prosecution case was the accused along with co-accused, armed with pistols, robbed a motorcycle from complainant and his brother and on resistance, the accused fired at them, resulting in the death of brother of complainant---Record showed that the accused while recording his statement on oath as provided under S.340(2), Cr.P.C., did not attribute any ill-will for his false involvement in that case on account of any enmity between the complainant, witnesses and the accused---Plea of accused that his involvement was at the instance of someone else was neither appealable nor reasonable and plausible---No evidence, whatsoever, in support of that plea was available---Stance of the accused that his family members were taken into custody to force him to make a confessional statement, did not appeal to reason nor any of the inmates was produced before the court to support the contention nor for that matter any such grievance was shown when the accused was produced for remand during the course of investigation--- Accused was not confronted with the report of Ballistic Expert---Though, there was irregularity but since the report of Ballistic Expert had been discarded and further that matter had already consumed a very lengthy period, therefore, it was not advisable to remand the case to confront the accused with a piece of evidence that had been discarded---Accused entered the witness box and recorded his statement under S.340(2), Cr.P.C. but he did not deny the recovery of robbed motorcycle---Circumstances established that findings so recorded by the Trial Court against the accused were not open to any legal exception---Appeal was dismissed accordingly.

Kazi Wali Muhammad for Appellant.

Athar Abbas Solangi for the Complainant.

Hussain Bux Baloch, Additional Prosecutor General, Sindh for the State.

2021 Y L R 2352

[Federal Shariat Court]

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

MUHAMMAD IRSHAD---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeal No. 5-K of 2018, decided on 10th October, 2019.

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

----Ss. 302(b), 365-B & 34---Criminal Procedure Code (V of 1898), S. 225---Qatl-i-amd, Kidnapping, abducting or inducing woman to compel for marriage, common intention---Appreciation of evidence---Defective charge---Scope---Prosecution case was that the accused committed zina-bil-jabbrwith minor daughter of complainant and killed her---Record showed that charge was defective for many reasons; Firstly, because time and date mentioned in the charge ran contrary to that of mentioned in the FIR, challan and rest of the documents, secondly, S.365-B, P.P.C. was inapplicable nor the same fit in the circumstances of the case, if any provision of P.P.C., in that respect, would be applicable that might be 364-A, P.P.C. and thirdly, the allegation of abduction had been levelled against both the accused in the joint charge, whereas, the allegation of zina-bil-jabr was preceded by the word only "you" without mentioning "you both" or referring to any accused specifically, therefore, said material defect in the charge was incurable---Appeal was allowed by setting aside impugned judgment and the case was remanded to the Trial Court for de novo trial.

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

----Ss. 302(b), 365-B & 34---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, Kidnapping, abducting or inducing woman to compel for marriage, common intention---Appreciation of evidence---Examination of accused---Scope---Prosecution case was that the accused committed zina-bil-jabbr with minor daughter of complainant and killed her---Examination of accused under S.342, Cr.P.C, showed that the first question, perhaps, a verbatim reproduction of the charge without taking into account that the co-accused had been acquitted of the charge, therefore, question did not appear to have been framed after proper application of the judicial mind to the facts of the case, similarly, formulated another point for determination had been resolved in affirmative without bearing in mind that the one of the accused had already been acquitted of the charge---Appeal was allowed by setting aside impugned judgment and the case was remanded to the Trial Court for de novo trial.

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

----Ss. 302(b), 365-B & 34---Criminal Procedure Code (V of 1898), S. 367---Qatl-i-amd, Kidnapping, abducting or inducing woman to compel for marriage, common intention---Appreciation of evidence---Language and contents of judgment---Scope---Prosecution case was that the accused committed zina-bil-jabbr with minor daughter of complainant and killed her---Record showed that the provisions of S.367, Cr.P.C., were never adhered to---Accused was convicted under S.10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with S.365-B, P.P.C., whereas, S.365-B, P.P.C. did not find mention in the charge nor in the questioner maintained under S.342, Cr.P.C.---Under S.10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, the maximum sentence that had been provided was ten years and if someone was found guilty of offence under S.10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, then the convict had to be sentenced with whipping numbering 30-stripes---Section 10(2) of the Ordinance did not apply and the applicable section was 10(3)---Accused was convicted under S.302, P.P.C.---Section 302, P.P.C. contained three clauses, which carried its own consequence, effect and impact keeping in view the facts and circumstances of each case---Trial Court without adhering to respective clauses had simply mentioned S.302, P.P.C.---Federal Shariat Court observed that suppose that sentence was treated to have been awarded under S.302(b), P.P.C. in the case as per the provision of S.367 subsection (5), Cr.P.C. major penalty was to be awarded and the option for lesser punishment needed mitigating circumstances which required to be dealt with specifically, justifying the option so taken---Appeal was allowed by setting aside impugned judgment and the case was remanded to the Trial Court for de novo trial.

Agha Zafir Ali for Appellant.

Zafar Ahmed Khan, Additional Prosecutor General Sindh for the State/ Respondent.

Ibad-ul-Husnain for the Complainant.

2021 Y L R 2405

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

LIAQUAT ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 36-K of 2018, decided on 25th April, 2019.

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

----Ss. 302(b), 392, 394, 109 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Qatl-i-amd, robbery, dacoity, abetment, common intention, haraabah---Appreciation of evidence---Benefit of doubt---Delay of thirty nine hours and thirty minutes in lodging the FIR---Effect---Prosecution case was that the accused while armed with weapon snatched motor cycle from the complainant party, on resistance, accused made firing on complainant party, brother of complainant was hit and died---Admittedly, FIR had been lodged after 39 hours and 30 minutes delay without any sufficient reason or plausible cause, which provided sufficient time for deliberation and consultation---Even the complainant nominated the accused and acquitted co-accused, therefore, possibility of fabricated story could not be ruled out---Circumstances established that the prosecution had failed to prove the charge against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 392, 394, 109 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, robbery, dacoity, abetment, common intention, haraabah---Appreciation of evidence---Benefit of doubt---Dishonest improvement made by witness---Effect---Prosecution case was that the accused while armed with weapon snatched motor cycle from the complainant party, on resistance, accused made firing on complainant party, brother of complainant was hit and died---Supplementary statement made by complainant could not be relied upon as the witness improved his statement dishonestly, thus, the credibility of the witness became doubtful on the strength of the principle that "improvement once found deliberate and dishonest caused serious doubt on veracity of such witness"--- Circumstances established that the prosecution had failed to prove the charge against the accused beyond shadow of doubt--- Appeal against conviction was allowed, in circumstances.

Tariq Pervaiz v. The State 1995 SCMR 1345; Muhammad Ilyas v. The State 1997 SCMR 25; Ghulam Qadir v. The State 2008 SCMR 1221; Hashim Qasim v. The State 2017 SCMR 986; Ziaullah alias Jajj v. The State 2008 SCMR 1210; Adrees v. The State 2002 SCMR 1439; Muhammad Afzal v. The State 2017 SCMR 1645 and Munir Ahmad and another v. The State and another 2019 SCMR 79 ref.

Hadi v. The State PLD 1963 (W.P) Kar. 805 and Akhtar Ali and others v. The State 2008 SCMR 6 rel.

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

----Ss. 302(b), 392, 394, 109 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Qatl-i-amd, robbery, dacoity, abetment, common intention, haraabah---Appreciation of evidence---Benefit of doubt--- Supplementary statement---Scope---Prosecution case was that the accused while armed with weapon snatched motor cycle from the complainant party, on resistance, accused made firing on complainant party, brother of complainant was hit and died---Record showed that through supplementary statement of the complainant, the accused had been involved in the case---Any such statement or further statement of the complainant recorded during investigation by the police after ten days of the occurrence could not be equated with FIR nor it could be read as part of it, thus, such further statement at the most might be considered statement recorded under S.161 or 162, Cr.P.C, having no much evidentiary value--- Circumstances established that the prosecution had failed to prove the charge against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 392, 394, 109 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, robbery, dacoity, abetment, common intention, haraabah---Appreciation of evidence---Benefit of doubt---Test identification parade---Scope---Prosecution case was that the accused while armed with weapon snatched motor cycle from the complainant party, on resistance, accused made firing on complainant party, brother of complainant was hit and died---Admittedly, the accused being a close relative of complainant was known to him, therefore, conduct of identification parade was totally illegal as the identification parade was never conducted about culprits already known to the witnesses---Identification parade was defective because of delay in holding the same jointly, had not been explained satisfactorily---Role attributed to the accused was not stated by the witnesses, therefore, their identification had no evidentiary value--- Circumstances established that the prosecution had failed to prove the charge against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Mehmood Ahmad and others v. The State 1995 SCMR 127; Lal Pasand v. The State PLD 1981 SC 142; Ziaullah alias Jajj v. The State 2008 SCMR 1210; Sabir Ali alias Fauji v. The State 2011 SCMR 563; Ghulam Rasool and others v. The State 1988 SCMR 557 and Khadim Hussain v. The State 1985 SCMR 721 rel.

Wazeer Hussain Khoso for Appellant.

Syed Meeral Shah Bukhari, Additional Prosecutor General, Sindh for the State.

2021 Y L R 102

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

ZAHID ULLAH---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 45 of 2020, decided on 28th February, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-F(v), 337-F(iii), 324, 148 & 149---Hurt, attempt to commit qatl-i-amd, rioting, unlawful assembly---Bail, grant of---Further inquiry---During Jirgah, due to an altercation between the parties fight took place and three persons belonging to the accused party were murdered in the said occurrence---Accordingly, two FIRs were registered against each other by the parties---Accused had allegedly opened fire on one person and he sustained injuries, but no Medico Legal Report and injury sheet regarding injury of said person was produced by the prosecution which created serious doubt regarding involvement of the accused in the case---Delay of 24 hours in lodging the FIR was not explained---Co-accused had already been granted pre-arrest bail by the lower court, hence rule of consistency applied to the case of the accused---Accused was admitted to bail, in circumstances.

Burhan Wali and Usman Ghani for Petitioner.

Deputy Advocate General for the State.

2021 Y L R 224

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

MIR NAWAZ MIR and 2 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Interior, Ministry of Interior, Islamabad and 2 others---Respondents

Writ Petition No. 108 of 2019, decided on 2nd September, 2019.

Gilgit-Baltistan (Empowerment and Self Governance) Order, 2018---

----Art. 86---Anti-Terrorism Act (XXVII of 1997), S. 11-EE---Writ petition---Proscription of person---Scope---Petitioners assailed inclusion of their names in the list of Fourth Sched. of Anti-Terrorism Act, 1997---Contention of petitioners was that the Deputy Attorney General had made a categorical statement at the bar that the names of petitioners had been deleted from the list of Fourth Sched. at the time of disposal of an earlier writ petition---Validity---Chief Court observed that when an undertaking was given in the court, deviation therefrom amounted to the gravest kind of contempt of court---Names of petitioners were deleted from the list of impugned notification---Writ petition was disposed of accordingly.

Raja Shakeel Ahmad for Petitioners.

Deputy Attorney General for Respondents.

2021 Y L R 301

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

BABAR ALI---Petitioner

Versus

MUHAMMAD ZAHEER and another---Respondents

Civil Revision No. 20 of 2018, decided on 18th November, 2019.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Suit for declaration and possession---Compromise decree, setting aside of---Fraud and misrepresentation---Contention of applicant was that he was not party to the suit and compromise decree had been obtained through fraud and misrepresentation--- Petition for setting aside of compromise decree was dismissed concurrently---Validity---Petitioner had appeared before the Trial Court as a witness in the suit in which compromise decree had been passed---Applicant was well aware with regard to pendency of suit between the parties and he had not filed an application for his impleadment in the said suit---Witnesses of petitioner had not substantiated his claim as they had not uttered a single word with regard to fraud and misrepresentation---Petitioner had failed to prove any misrepresentation or fraud on the part of respondents in obtaining impugned decree---Petitioner had not filed copies of pleadings and documents with the revision petition therefore, same was not maintainable---No mis-reading or non-reading of evidence had been pointed out in the impugned orders passed by the Courts below---Concurrent findings of facts rendered by the Courts below were based on proper appreciation of evidence---Revision was dismissed, in circumstances.

Mohammad Wazir for Petitioner.

Didar Aman Shah for Respondents.

2021 Y L R 335

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

MALIKAN/JUMLA AWAM BASHA THAK through representatives---Petitioners

Versus

MALIKAN/JUMLA AWAM KHARANJI HETI through representatives-- Respondents

Civil Revision No. 92 of 2019, decided on 22nd November, 2019.

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

----O.XLI, R.27 & O.XIII, Rr.1 & 2---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and permanent injunction---Production of additional evidence before Appellate Court---Requirements---Suit was dismissed against which appeal was filed wherein application for production of additional evidence was moved under O.XIII, Rr.1 & 2, C.P.C. which was dismissed---Validity---Appellate Court in order to enable it to pronounce a judgment might allow any document to be produced or any witness to be examined---Appellants, in the present case, had filed application to produce public documents which were not in their possession at the time of filing of appeal---Documents which the appellants intended to produce before the Appellate Court were public documents and Court had not expressed any doubt with regard to authenticity and genuineness of said documents---Appellate Court had held that provisions of O.XIII, Rr. 1 & 2, C.P.C. could not be invoked at appellate stage---Mere mentioning a wrong provision of law was not to disentitle a party to relief which was otherwise available to it under the law---Appellate Court should have treated the petition as one under O.XLI, R.27, C.P.C.---Parties should be allowed to produce documents on record which were otherwise unimpeachable for resolving the controversy---Impugned order passed by the Appellate Court was set aside and the petitioners were allowed to produce documents as additional evidence in the Appellate Court---Authenticity of said documents was to be considered by the Appellate Court at the time of decision of appeal---Revision was allowed, in circumstances.

(b) Administration of justice---

----Mere mentioning a wrong provision of law was not to disentitle a party to relief which was otherwise available to it under the law.

Amjad Hussain and Raja Inam-ur-Rehman for Petitioners.

Ehsan Ali and Naseem Akhtar for Respondents.

2021 Y L R 414

[Gilgit-Baltistan Chief Court]

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

ABDUL RASHID and 4 others---Petitioners

Versus

GOVERNMENT OF GILGIT BALTISTAN through Chief Secretary and 4 others---Respondents

Writ Petition No. 226 of 2017, decided on 19th September, 2019.

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

----Ss. 34 & 18--- Gilgit-Baltistan (Empowerment and Self-Governance) Order 2009, Art.71(2)---Writ jurisdiction---Payment of interest---Reference to Court---Factual controversy---Scope---Petitioner sought direction from High Court under writ jurisdiction to the authorities to pay compound interest on the compensation amount at the rate of 8% per annum from the date of taking possession of acquired land till payment of its compensation amount--- Validity---Petitioners had not annexed any record/document regarding actual date of taking possession of their land by the authorities---Said date could not be determined by the Chief Court by invoking its writ jurisdiction---Writ petition, being not maintainable, was dismissed, in circumstances.

2011 GBLR 382 ref.

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

----Art. 71(2)---Writ jurisdiction---Extraordinary jurisdiction---Scope---Writ is an extraordinary jurisdiction of Chief Court and it can be exercised in special circumstances where aggrieved party had no adequate and efficacious remedy available.

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

----Art. 71(2)---Writ jurisdiction---Factual controversy---Scope---Chief court in exercise of its writ jurisdiction cannot go into question invoking minute details and investigation.

Raja Shakeel Ahmed for Petitioners.

Assistant Advocate General for Respondents.

2021 Y L R 427

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

KARIM ULLAH BAIG and 4 others---Petitioners

Versus

ASAD ULLAH BAIG and 5 others---Respondents

Civil Revision No. 71 of 2019, decided on 25th October, 2019.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Specific Relief Act (I of 1877), Ss. 42 & 54---Limitation Act (IX of 1908), Art. 142---Suit for declaration and permanent injunction---Limitation---Plaint, rejection of---Scope---Defendants during pendency of suit filed application for rejection of plaint---Trial Court rejected the plaint holding that suit was time barred but Appellate Court remanded the matter for decision on merits---Validity---Plaintiff had sought declaration to the effect that he was entitled to get his Shari share from the legacy of his deceased father being his legal heir---Present suit being for declaration and possession of suit land, Art. 142 of Limitation Act, 1908 was applicable to the suit of plaintiff, which had prescribed a period of twelve years for filing of such suit---Trial Court had failed to consider nature of suit and had wrongly rejected the plaint---Appellate Court had rightly remanded the case while accepting appeal filed by the plaintiff---No illegality or mis-appreciation of law had been pointed out in the impugned order passed by the Appellate Court---Revision was dismissed, in circumstances.

Mohammad Nafees for Petitioners.

Imtiaz Hussain for Respondent No.1.

Additional Advocate General and Dy. Advocate General for Respondents Nos. 2 to 6.

2021 Y L R 446

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

UMAR KHAN---Petitioner

Versus

HEAD QUARTER SPECIAL COMMUNICATION ORGANIZATION (SCO), RAWALPINDI through Director General (SCO) and 9 others---Respondents

Civil Revision No. 111 of 2019, decided on 27th August, 2019.

Civil Procedure Code (V of 1908)---

----S. 115 & O. XXXIX, Rr. 1 & 2---Revision petition---Application for interim injunction, deferment of---Scope---Petitioner assailed order passed by Appellate Court whereby his appeal against interlocutory order passed by Trial Court was dismissed---Validity---Trial Court vide impugned order had simply deferred/adjourned the hearing of injunction application till filing of written statement by the defendants and had not passed any adverse order against the petitioner---Order passed by Trial Court was neither appealable nor revisable---High Court observed that an application under O.XXVI, R.9, C.P.C., was filed by petitioner for appointment of commission for local investigation, which was pending adjudication in the Trial Court---Case was remanded to the Trial Court with direction by the High Court to dispose of the application under O.XXVI, R.9, C.P.C., on top priority basis and thereafter, dispose of the application under O.XXXIX, Rr. 1 & 2, C.P.C., after hearing arguments of both the parties on merits within shortest possible time---Parties, in the meanwhile, were directed to maintain status quo---Revision petition was disposed of accordingly.

Rashid Umar for Petitioner.

2021 Y L R 547

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

SHER AFZAL---Petitioner

Versus

JANGI BAHADUR---Respondent

Civil Revision No. 5 of 2019, decided on 21st June, 2019.

Civil Procedure Code (V of 1908)---

----S. 12(2)--- Plaintiff filed application under S.12(2), C.P.C., stating therein that the District Judge without taking his consent and recording his statement had passed the impugned order whereby suit was disposed of as withdrawn---Application under S.12(2), C.P.C. was dismissed---Validity---Grounds for filing application under S.12(2), C.P.C., were fraud, misrepresentation and want of jurisdiction---No fraud was committed by the respondent; plaintiff was not misrepresented before the trial court as he had appeared in person before the trial court when the impugned order was passed and District Court under the Defamation Ordinance, 2002, had jurisdiction to entertain the defamation cases, hence, the petition filed by the plaintiff was not sustainable in the eyes of law---Trial Court had rightly dismissed the application---Revision petition was dismissed, in circumstances.

Ehsan Ali for Petitioner.

Zafar Iqbal for Respondent.

2021 Y L R 583

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

IMRAN ULLAH and another---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous No. 35 of 2020, decided on 19th 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---Recovery of 2000 grams of Charas---Period of about 2 months had elapsed but report of Chemical Examiner had not yet been received by the police---Both the accused were boarded in the same vehicle from which the contraband Charas was recovered---Joint recovery memo was not admissible in evidence---Complainant being Head Constable was not competent to arrest the accused persons and search their vehicle---Under S.21 of the Control of Narcotic and Substances Act, 1997, an officer not below the rank of Sub-Inspector could search, seize and arrest the accused without warrant---Accused persons were admitted to bail, in circumstances.

Burhan Wali for Petitioners.

Deputy Advocate General for Respondent/State.

2021 Y L R 720

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, C.J. and Ali Beg, J

HAMID HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 34 of 2017, decided on 4th May, 2020.

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

----S. 376---Anti-Terrorism Act (XXVII of 1997), S.7---Rape---Act of terrorism---Appreciation of evidence---Scope---Accused was alleged to have committed rape with the child of about 8 years---Accused was directly charged in the FIR for commission of the offence---Victim had fully supported the prosecution case---Prosecution witnesses were quite in line with each other and the witnesses had deposed in the Trial Court in a natural manner, without any material improvement/exaggerations--- Medical examination report reflected that the victim was in school uniform at the time of her medical examination which further strengthened the stance of the victim and the prosecution witnesses that she was raped by the accused while she was to leave school after closing of school---Prosecution had successfully proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

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

----S. 376---Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 19---Criminal Procedure Code (V of 1898), S. 537---Rape---Act of terrorism---Procedure and powers of Anti-Terrorism Court---Findings or sentence reversible by reason of error or omission in charge or other proceedings--- Scope--- Accused was convicted for having committed rape with the child of about 8 years---Contention of accused was that both the counsel engaged on state expenses to defend him were not eligible as they were lacking the basic criteria of 7 years practice which was a pre-requisite as provided under S.19(8) of the Anti Terrorism Act, 1997---Held; S.19(8) of the Anti Terrorism Act, 1997 did not expressly provide that its non-compliance would result into vitiating the trial---Cross-examination conducted by both the lawyer showed that they tried their level best to defend the accused---No prejudice was caused to the accused in his trial and any irregularities committed during trial was curable under S.537, Cr.P.C.---Chief Court could cure any illegality/irregularity during trial while hearing an appeal---Appeal against conviction was dismissed, in circumstances.

PLD 1986 Lah. 115, 1997 MLD 1130; 1997 MLD 1632 and 2010 PCr.LJ 812 distinguished.

Yawar Abbas for Appellant/ convict.

Dy. Advocate General for the State.

2021 Y L R 864

[Gilgit-Baltistan Chief Court (Skardu Bench)] Before Ali Baig, J

GHULAM MUHAMMAD---Petitioner

Versus

TAHIR HUSSAIN and 5 others---Respondents

Civil Revision No. 13 of 2019, decided on 25th September, 2020.

Civil Procedure Code (V of 1908)---

----O.VII, R.11---Specific Relief Act (I of 1877), Ss. 8 & 42---Suit for possession and declaration---Rejection of plaint---Framing of issues--- Plaintiffs/ respondents claimed to be legal heirs of deceased owner of suit property who was their maternal grandfather and sought their legal share out of property left by him---Plaint was rejected by Trial Court in exercise of jurisdiction under O.VII, R.11, C.P.C. after issues had already been framed but Lower Appellate Court set aside order passed by Trial Court---Validity---Plaintiffs/respondents made bundle of claims which required to be proved by them---Chief Court observed that sufficient opportunity should have been given to plaintiffs/respondents to prove their allegations/claims by adducing evidence---Plaintiffs/respondents disclosed cause of action in their plaint and allegations/claims asserted therein and written statement could only be decided after framing of issues and recording of evidence of parties---Trial Court had already framed issues and case was fixed for evidence of plaintiffs/ respondents, as such pliant could not be rejected under O.VII, R.11, C.P.C. at such belated stage---Chief Court declined to interfere in the matter as Trial Court committed material irregularity and illegality while rejecting plaint of plaintiffs/respondents under O.VII, R.11, C.P.C. and Lower Appellate Court through its appellate jurisdiction had rightly set aside judgment/order passed by Trial Court---Revision was dismissed, in circumstances.

Muhammad Zahid Abbas for Petitioner.

Niaz Ali Siyam for Respondents.

2021 Y L R 1069

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

SALAH UD DIN and another---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous Nos. 139 and 144 of 2020, decided on 30th September, 2020.

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

----S. 498---Prohibition of (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Recovery of liquor---Pre-arrest bail, refusal of---Allegation against the accused was that huge quantity of contraband liquor/wine was recovered from the premises of accused---Admittedly, both the accused were directly nominated in the promptly lodged FIR---Accused was present at the place of occurrence and decamped from the house of the co-accused at the time of conducting of raid at his house by police---Huge quantity of local wine/ contraband liquor had been recovered from the house of the co-accused in presence of recovery witnesses/Police Officials---From tentative assessment of material collected by the police during investigation, it appeared that both accused-petitioners were prima facie connected with the alleged offence charged against them---Court, in pre-arrest bail matter, was supposed to examine as to whether the accused had proved mala fide on the part of complainant or prosecution or his false involvement---In the present case, neither such plea was taken by the accused-petitioners in the bail petition nor proved on the record---Accused were not entitled to the extra-ordinary concession of pre-arrest bail---Pre-arrest bail petitions were dismissed, in circumstances.

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

----S. 498---Pre-arrest bail---Scope---Grant of pre-arrest bail to accused is extraordinary concession which is to be granted where the case against the accused is prima facie false, the involvement of the accused is actuated by malice, the aim of complainant is to humiliate the respectable person/accused and to cause irreparable injury to his reputation and liberty or the case is politically motivated.

Imtiaz Hussain and Sadiq Hussain for Petitioners.

Deputy Advocate General for Respondent/State.

Fida Hussain Jafferi, SIP/IO in person.

2021 Y L R 1128

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

MOHAMMAD SALEEM KHAN---Appellant

Versus

MOHAMMAD IBRAR ISMAIL and 5 others---Respondents

Civil First Appeal No. 52 of 2019, decided on 19th March, 2020.

Civil Procedure Code (V of 1908)---

----S.12(2)---Limitation Act (IX of 1908), S.18---Suit for declaration and permanent injunction---Compromise decree---Fraud and misrepresentation---Decree, setting aside of---Limitation---Suit was dismissed against which appeal was filed---Parties compromised before the Appellate Court and compromise decree was passed---Applicant filed application for setting aside of compromise decree which was dismissed being time-barred---Contention of applicant was that decree had been obtained by fraud and misrepresentation---Validity---Applicant was brother of defendants and suit land was their common property--- Defendants had effected compromise with the plaintiff without consent and permission of applicant---Applicant was not a party in the suit filed on behalf of plaintiff---If decree had been obtained by fraud and misrepresentation then limitation would start from the date when decree came in the knowledge of petitioner---Limitation was a mix question of law and facts and same required evidence---Trial Court would have framed issues and after recording evidence the petition was to be decided on merits---Impugned order passed by the Court below was set aside, in circumstances---Application was to be deemed to be pending before the Trial Court and to be decided after framing of issues and recording of evidence of the parties in accordance with law---Appeal was allowed, in circumstances.

1986 SCMR 1496 and 2001 MLD 1265 rel.

Sharif Ahmed for Appellant.

2021 Y L R 1280

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, C.J. and Ali Beg, J

SAJID HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos. 14, 12 and Murder Reference No. 2 of 2019, decided on 20th August, 2020.

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

----S. 302(b)---Arms Ordinance (XX of 1965), S. 13---Qatl-i-amd, possessing unlicensed weapon---Appreciation of evidence---Ocular account supported by medical evidence---Scope---Accused was charged for committing murder of brother of the complainant by firing---In the present case, the evidence of two companions of deceased revealed that immediately after commission of offence the accused fled away from the place of occurrence on a vehicle---Both the said witnesses as per statement of third companion of deceased informed him that the accused had committed the murder of deceased and escaped in a car, which was later on recovered and taken into possession by the local police---Statement of third companion of deceased regarding the occurrence remained consistent and could not be shattered by the defence---Site plan/site inspection reports, which were prepared immediately after the occurrence, carried the name of the accused as the sole culprit and the murderer of deceased---Record showed that the ocular evidence was quite in line with the medical evidence, which fully supported the case of prosecution in addition to the reports of Forensic and Chemical Expert---Place of occurrence, the manner of occurrence, the arrest of the accused, recoveries of incriminating articles had not been seriously challenged by the defence---Benefit of some technical lapse could not be extended to the accused when abundant evidence was available on record, which left no doubt in one's mind that it was the accused alone who committed the offence---Circumstances established that the prosecution had proved the guilt of the accused upto the hilt---Appeal against conviction was dismissed accordingly.

2015 YLR 327; 2007 PCr.LJ 675; 2000 SCMR 785; PLD 1983 SC 197; PLD 1989 SC 20; PLD 2011 SC 554 and 2018 YLR 1547 ref.

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

----Art. 19---Admissibility of evidence as res gestae---Statement of any witness soon after the occurrence is admissible in evidence under Art. 19 of Qanun-e-Shahadat, 1984.

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

----S. 302(b)---Arms Ordinance (XX of 1965), S. 13---Qatl-i-amd, possessing unlicensed weapon---Appreciation of evidence---Recovery of weapon, crime empty and other incriminating articles---Scope---Accused was charged for committing murder of brother of the complainant by firing---Accused was arrested and weapon of offence i.e. 30 bore pistol was recovered from him on his pointation after six days---Investigating Officer of the case on the day of occurrence had taken into possession one spent bullet of a 30 bore pistol, which was sent to Forensic Science Agency and a positive report had been received therefrom---Report of Chemical Examiner regarding the last worn vest (bunyan) of the deceased and the blood stained earth was also in affirmative---Circumstances established that the prosecution had proved the guilt of the accused upto the hilt---Appeal against conviction was dismissed accordingly.

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

----S. 302(b)---Arms Ordinance (XX of 1965), S.13---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, possessing unlicensed weapon---Appreciation of evidence---Statements of witnesses recorded by Judicial Magistrate--- Scope--- Accused was charged for committing murder of brother of the complainant by firing---In the present case, statements of two inmates of the room of the deceased, were recorded under S.164, Cr.P.C., after fulfilment of all the legal formalities---One room mate resiled from his statement recorded by the Judicial Magistrate under S.164, Cr.P.C. while other witness could not be traced till conclusion of trial---Judicial Magistrate appeared before the court and got exhibited the statements of said witnesses---Perusal of the said statements showed that those statements were recorded after fulfilment of all the legal and codal formalities---Accused was given prior notice under S.265-J, Cr.P.C. and the accused was also asked to engage a counsel, but he did not do so---One witness though, when appeared in witness box, resiled from his statement recorded under S.161, Cr.P.C as well as under S.164, Cr.P.C., but during cross-examination the said witness admitted almost all the material events---Said witness during cross-examination admitted his presence with deceased and other witness in the same room at the night of occurrence---Witness also admitted hearing of fire shot in the room---Witness candidly admitted during cross-examination the recording of his statement under Ss.161 & 164, Cr.P.C. and admitted that he had now resiled from those statements---Circumstances established that the prosecution had proved the guilt of the accused upto the hilt---Appeal against conviction was dismissed accordingly.

(e) Criminal trial---

----Witness---Hostile witness---Scope---Statement of a hostile witness was not to be discarded as a whole but where some portion of his statement, supported the case of prosecution, the same could be used in support or corroboration of prosecution.

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

----S. 164--- Witness--- Statement of untraced or dead witness recorded under S.164, Cr.P.C.---Scope---If a person was dead or could not be found his statement recorded under S.164, Cr.P.C could be brought on record as a piece of evidence.

Amjad Hussain for Appellant/ Convict.

Faiz Wahid for the Complainant.

Dy. Advocate General for the State.

2021 Y L R 1339

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, C.J. and Ali Baig, J

Mst. NELOFER IQBAL and 2 others---Petitioners

Versus

CHIEF COURT GILGIT-BALTISTAN through Registrar Chief Court

and 3 others---Respondents

Writ Petition No. 08 of 2019, decided on 25th September, 2020.

Land Acquisition Act (I of 1894)---

----Ss.18 & 34---Acquisition of land---Compensation---Time barred reference---Land owned by petitioner was acquired and reference for enhancing of compensation was not forwarded to Referee Court as the same was barred by limitation---Validity---Collector Land Acquisition had ample powers to examine/scrutiny of reference petition before forwarding the same to Referee Court concerned---During examination of reference petition if Collector had found the reference petition of petitioners barred by time, he could have dismissed the reference petition without forwarding the same to Referee Court---Collector Land Acquisition had rightly dismissed the reference petition of petitioners as the same was time barred---Constitutional petition was dismissed in circumstances.

Mohammad Saleem and Liaqat Ali Azmi for Petitioners.

2021 Y L R 1379

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, C.J.

HUKUM KHAN---Petitioner

Versus

The STATE---Respondent Criminal Miscellaneous No. 142 of 2020, decided on 23rd July, 2020.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Order for custody and disposal of property pending trial in certain cases---Scope---Petitioner sought superdari of vehicle which was found on the crime scene where the dead body of his son was found---Validity---Petitioner had failed to substantiate through documentary evidence that he was a bona fide purchaser of the vehicle---Tax of the vehicle had not been paid since last three years---Superdari petition was dismissed.

Arif Nazir for Petitioner.

Deputy Advocate General for Respondent/State.

2021 Y L R 1429

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, C.J.

SHAFAYAT ULLAH and 4 others---Petitioners

Versus

SHAH KHALID and another---Respondents

Criminal Miscellaneous No. 19 of 2020, decided on 3rd August, 2020.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 341, 337-A, 506, 109, 120-A, 120-B & 34---Qatl-i-amd, wrongful restraint, shajjah, criminal intimidation, abetment, criminal conspiracy, common intention---Bail, grant of---Scope---Eight accused persons were alleged to have been involved in the crime---Three of the accused persons were booked in the FIR as allegedly they hatched a conspiracy for getting the deceased done to death---Role of conspirator was not at par with rest of the accused because every attribution of conspiracy had to be seen in the context of Ss.120-A & 120-B, P.P.C., which contemplated an agreement between two or more persons to an illegal act or an act which was not illegal but by illegal means---Mere attribution of conspiracy by a prosecution witness, whose credibility was yet to be ascertained after he passed the acid test of cross-examination could not be accorded judicial sanction to curtail the liberty of accused---No legal or moral justification existed to withhold the concession of bail to said accused persons---Accused persons were enlarged on bail, in circumstances.

2019 YLR 511 and PLD 1996 SC 241 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 341, 337-A, 506, 109 & 34---Qatl-i-amd, wrongful restraint, shajjah, criminal intimidation, abetment, common intention---Bail, grant of---Scope---Eight accused persons were alleged to have been involved in the crime---Three real brothers of advance age were implicated in the case and later on one of their brothers, who could not be implicated in the main FIR, was subsequently nominated by two eye-witnesses except the complainant and a very vital role of taking all the accused persons in his own car was attributed, which how skipped from the eyes of complainant was a question---In addition to taking on the generalized allegations, it still could not be ciphered out that whose blow amongst the plenty of accused persons sounded fatal besides the intention to kill seemed altogether missing in totality of circumstances wherein an accused was shown duly armed with pistol and the deceased throughout the occurrence had not received any fire shot---Phenomenon of throwing a wider net was apparent from the day one---Subsequent implication in itself was a matter of further inquiry and the benefit of doubt could not be withheld even at bail stage---Accused persons were enlarged on bail, in circumstances.

PLD 1972 SC 277; 1995 SCMR 387; 2016 SCMR 1792; 2016 SCMR 1558; 2016 SCMR 2046 and 1998 MLD 1957 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 341, 337-A, 506, 109 & 34---Qatl-i-amd, wrongful restraint, shajjah, criminal intimidation, abetment, common intention---Bail, grant of---Plea of alibi---Scope---Eight accused persons were alleged to have been involved in the crime---One of the accused persons at the very onset had taken a plea of alibi and it appeared that the same was not taken in vacuum, rather the same seemed justified being augmented by certain unimpeachable documentary evidence, one of which was a biometric verification receipt for Hajj purposes and the same was conducted on the date of incident, which could not be ignored due to its online system---Accused even on the following day was present in a hotel as reflected from its register---Person intending to go for Hajj could not be believed that after being verified biometrically he would go to commit someone's murder and after that would go back to stay in the hotel---Plea of alibi was justified and the accused deserved the concession of bail---Accused was enlarged on bail, in circumstances.

1996 SCMR 931 and PLD 1998 SC 97 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 341, 337-A, 506, 109 & 34---Qatl-i-amd, wrongful restraint, shajjah, criminal intimidation, abetment, common intention---Bail, grant of---Scope---Eight accused persons were alleged to have been involved in the crime---One of the accused who was a student of law and was in the final year when the predicament commenced---Three advocates with respect to the present accused had sworn in their affidavits mentioning therein that the accused on the day of occurrence was present with them in connection with hearing of a case and he received the information while being in their company---All three advocates were not only non-partisan witnesses of the accused present with them, but were also locals of the area---Chief Court observed that none would bear the brunt in such like cases including blood feuds until and unless their conscious rang a bell to stand by the truth---Accused was enlarged on bail, in circumstances.

1980 SCMR 190 and 1975 SCMR 151 ref.

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

----S. 497---Bail---Principal---Even a mistaken ad-interim relief can be repaired if the accused ultimately gets convicted, but if the relief is denied there can be no compensation for an accused who ultimately gets acquitted.

2016 SCMR 18 and 2007 PCr.LJ 1027 ref.

Muhammad Saleem for Petitioners/ accused.

Jehanzeb Khan for the Complainant.

Deputy Advocate General for the State.

2021 Y L R 1582

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, C.J. and Ali Baig, J

Messrs SAFDAR ENTERPRISES through Javed Hussain---Petitioner

Versus

The PROVINCIAL GOVERNMENT through Chief Secretary, Gilgit-Baltistan and 4 others---Respondents

Writ Petition No. 43 of 2019, decided on 1st October, 2020.

Government of Gilgit-Biltistan Order, 2018---

----Art. 86(2)---Writ petition---Factual controversy---Recovery of money---Petitioner sought recovery of huge amount amounting to Rs.120.71 million from authorities with the plea that his vehicles were hired by them to maintain law and order situation at Gilgit---Validity---Authorities repudiated claim of petitioner therefore, intricate question of facts was involved in the matter and the same could not be resolved by Chief Court in its writ jurisdiction without recording of pro and contra evidence---Complicated question of facts pertaining to contractual liability could not be dealt with by Chief Court in its writ jurisdiction under Art.86(2) of Government of Gilgit-Biltistan Order, 2018---Matter required extensive recording of evidence of both parties and only Civil Court was competent to do that---Writ petition was dismissed in circumstances.

PLD 2002 SC 1068; 2000 SCMR 998; 2002 SCMR 59 553 and 1994 SCMR 2287 rel.

Amjad Hussain for Petitioner.

Assistant Advocate General for Respondents.

2021 Y L R 1766

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, C.J. and Ali Baig, J

MUHAMMAD ESSA KHAN through L.Rs.---Petitioners

Versus

MUHAMMAD AFZAL KHAN through L.Rs. and 10 others---Respondents

Writ Petition No. 118 of 2019, decided on 7th December, 2020.

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

----O. VI, R. 17---Amendment of the pleadings---Scope---Petitioners/defendants contended that the Appellate Court had wrongly reversed the order of dismissal passed by Trail Court on application of respondents (plaintiffs) filed under O.VI, R. 17 of Civil Procedure Code, 1908---Held, that if the proposed amendments, in the present case, were to be allowed, neither complexion of suit would be changed nor a new cause of action would be introduced, rather the said amendment in the plaint would help to arrive at a correct and just conclusion---Constitutional petition was dismissed.

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

----O. VI, R. 17---Amendment of the pleadings ---Stage of case at which amendment of pleadings could be sought--- Scope--- Petitioners/defendants contended that the Appellate Court had wrongly reversed the order of dismissal passed by Trail Court on application of respondents (plaintiffs) filed under O.VI, R.17 of Civil Procedure Code, 1908---Held, that a party was at liberty to apply for amendment of the pleadings which could be allowed by the Trial Court, or the Appellate/revisional Court, or second Appellate Court and even by the Supreme Court, if the same was necessary for arriving at correct decision and determination of real controversy between the parties .

Johar Ali for Petitioners.

Manzoor Ahmad for Respondents.

2021 Y L R 1929

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

MUZAFFAR ALI KHAN---Petitioner

Versus

SHEHZAD KHAN---Respondent

Civil Revision Petition No. 32 of 2020, decided on 4th December, 2020.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11---Specific Relief Act (I of 1877), S. 42---Suit for declaration and possession---Rejection of plaint---Grounds---Trial Court rejected the plaint/suit on ground of maintainability on the application filed by the respondent (defendant)under O. VII, R. 11 of Civil Procedure Code, 1908---Contention of the petitioner/plaintiff that he had transferred the suit-land by way of gift in the name of his son (who later suffered from mental illness and passed away) for the purpose of getting loan from the bank by mortgaging the suit-land; and during the mortgage period the respondent had illegally purchased suit-land from his son---Validity---Record revealed that the installment of the loan had been paid by the petitioner to the bank; and that when mutation-in-question came to his knowledge, he submitted an application to the concerned Collector regarding illegal transfer of his land in the name of respondent---Collector appointed the Tehsildar for conducting an inquiry in the matter, who reported that mutation-in-question was illegal and was required to be cancelled to protect the interest of bank---During mortgage period the disputed property could not be sold-out---Contents/averments made in the plaint as well as impugned judgments/decrees passed by both the Courts below, transpired that no single ground for rejection of plaint as stipulated under O. VII, R. 11 of Civil Procedure Code, 1908 was available---Petitioner had been able to make out prima facie case in his favour and both the Courts below had committed material irregularity and illegality while rejecting his suit under O.VII, R.11 of C.P.C.---Chief Court set aside impugned judgments/decrees passed by both the Courts below and remanded the case back to the Trial Court to decide the case on merits---Revision was allowed, in circumstances.

Kamal Hussain for Petitioner.

Saqib Hussain for Respondent.

2021 Y L R 1985

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, C J

AHLIANE SUNDUS through Representative and 5 others---Petitioners

Versus

Khawaja AMIR JAN through legal heirs and 5 others---Respondents

Civil Revision No. 39 of 2014, decided on 21st September, 2020.

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

----Ss. 42 & 8---Suit for declaration and possession---Scope---Plaintiff filed suit for declaration and recovery of possession of the suit land on the basis of allotment order issued by the revenue authorities in his favour---Provincial Government, being custodian of the state land, had also filed written statement wherein it had admitted the allotment in favour of the plaintiff---Plaintiff had proved his case by producing cogent reliable oral as well as documentary evidence and the defendants had failed to rebut the same by producing reliable evidence---Courts below had passed the impugned judgment and decrees after proper appreciation of the material available on record---Revision petition was dismissed.

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

----S. 115---Revisional jurisdiction---Scope---Revisional jurisdiction is meant for correction of jurisdictional error and material illegalities or irregularities and in absence thereof, the concurrent findings cannot be interfered with.

Muhammad Ali Marghoob and Muhammad Zahid Abbas for Petitioners.

Muhammad Nazir for Respondent No.1.

2021 Y L R 2104

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, C.J.

MUHAMMAD SHAH and 9 others---Petitioners

Versus

IBRAHIM KHAN alias BALA KHAN and 2 others---Respondents

Revision Petition No. 32 of 2010, decided on 28th August, 2020.

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Art. 113---Suit for declaration---Facts admitted need not be proved---Scope---Petitioners assailed concurrent findings recorded by courts below whereby the suit of respondents was decreed---Respondents through their suit for declaration had sought 1/3rd in the property of their maternal grandfather---Petitioners had admitted the respondents to be legal heirs of the original owner---Facts once admitted need not be proved---No limitation ran against co-sharer to enforce right under the inheritance---Respondents had successfully proved their suit through reliable evidence---Courts below had recorded concurrent findings of facts against the petitioners while resorting to the established principles of appreciation of evidence which could not be disturbed by the High Court in its revisional jurisdiction---Revision petition was dismissed.

Amjad Hussain for Petitioners.

Sher Madad for Respondents.

2021 Y L R 2164

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

SANAULLAH KHAN---Petitioner

Versus

The STATE---Respondent

Criminal Revision No. 64 of 2020, decided on 16th April, 2020.

Criminal Procedure Code (V of 1898)---

----S. 516-A--- Superdari--- Scope---Petitioner assailed the dismissal of his application filed under S.516-A, Cr.P.C. for superdari of Laptop, Passport, Prize bonds and Cheque Books, etc.---Petitioner and his co-accused were booked for offences under Ss.120-B, 123-A, 124-A & 153-B, P.P.C. and Ss.6 & 7 of Anti-Terrorism Act, 1997 and the police, during investigation, had taken said articles into custody---Petitioner was bona fide owner and last possessor of the said articles and no other claimant had come forward to claim ownership---Articles were not required by the Trial Court---Retention of articles in police custody for indefinite period would not serve any useful purpose---Revision petition was accepted, order passed by Trial Court was set aside and the police was directed to give articles to the petitioner on superdari subject to his furnishing undertaking/affidavit to the extent that if the Trial Court forfeit the articles at the end of trial, he would return the amount of prize bonds and laptop to the Trial Court.

Muhammad Kumail for Petitioner.

Dy. Advocate General for the State.

2021 Y L R 2227

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, C.J.

LUMBERDAR HILLA KHAN through L.Rs. and 24 others---Petitioners

Versus

JUMLA ZAMINDARAN SINGUL through Representatives and others---Respondents

Civil Miscellaneous No. 203 of 2020 and Civil Revision No. 40 of 2019, decided on 5th June, 2020.

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

----O. XXXIX, Rr. 1 & 2---Temporary injunction, grant of---Scope---Plaintiffs filed suit against the defendants to the effect that they might be restrained from stopping the cattle of plaintiffs from entering the pasture in dispute---Trial Court decreed the suit whereas Appellate Court dismissed the suit---Plaintiffs along with the revision petition had filed an application under O. XXXIX, Rr. 1 & 2, C.P.C. and sought interim injunction against the defendants---Held, that record revealed that the plaintiffs had used their rights from 1997 to 2019 on the basis of court orders---Contention of the plaintiffs prima facie had found support from the order sheets maintained by the High Court, therefore, to decide real controversy between the parties and to save the parties from further litigation, the application was allowed and temporary injunction was granted in favour of the plaintiffs, in circumstances.

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

----O. XXXIX, Rr. 1 & 2---Temporary injunction--- Ingredients--- Scope---Temporary injunction can be granted only where plaintiff has a prima facie arguable case, where balance of convenience is also be in favour of the plaintiff, and there would be irreparable loss to plaintiff if temporary injunction is not granted---All said three ingredients should co-exist.

Raja Shakeel Ahmad for Petitioners/Plaintiffs.

2021 Y L R 2315

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

ZAMINDARAN HOLSHAL through Representatives---Petitioners

Versus

QALAB ALI and others---Respondents

Civil Revision No. 26 of 2020, decided on 9th October, 2020.

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

----O. VIII, R. 10---Procedure when party fails to present written statement called for by Court---Scope---Plaintiff/ petitioner assailed order passed by Appellate Court whereby it had set aside the order of the Trial Court whereby defendants'/respondents' right to file written statement was struck off---Validity---Trial Court had not issued specific directions to the respondents to file their written statement---Trial Court without affording/mentioning specific last opportunity had ceased the right of the respondents to file written statement---Right of filing written statement was substantial right given to the defendant by law and it could not be taken away without affording fair/proper opportunity---Trial Court had passed the order in a hasty manner and without applying its judicious mind---Appellate Court had rightly passed the impugned order---Revision petition was dismissed.

(b) Administration of justice---

----Courts are sanctuaries of the rights of the persons brought before them---Courts should leave no stone unturned in discharging their duties conferred upon them by statute and should not hesitate in using powers to do justice.

Johar Ali for Petitioners.

Jalal Haider, Ghulam Nabi and Nazir Ahmad for Respondents.

2021 Y L R 2399

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, C.J. and Ali Baig, J

SOHAIL RIAZ---Petitioner

Versus

ZUBAIDA BEGUM through Legal Heirs and others---Respondents

Writ Petition No. 245 of 2017, decided on 17th September, 2020.

Civil Procedure Code (V of 1908)---

----S. 20---Specific Relief Act (I of 1877), S. 39---Suit for cancellation of power of attorney---Suits to be instituted where defendants reside or cause of action arises---Territorial jurisdiction---Scope--- Petitioner assailed the concurrent dismissal of his application under O. VII, R. 11, C.P.C. wherein he had challenged the territorial jurisdiction of the Court at 'H' on the ground that the property was situated at 'I'---Validity---Disputed power of attorney was admittedly executed at 'H'---Marginal witnesses of said power of attorney also belonged to 'H'---Disputed power of attorney was also registered at 'H', therefore, the Civil Judge at 'H' had jurisdiction to entertain and adjudicate upon the matter---Writ petition was dis-missed, in circumstances.

Latif Shah for Petitioner.

Didar Aman Shah for Respondents Nos.1 to 8.

Manzoor Ahmed for Respondents Nos. 9 and 10.

2021 Y L R 39

[High Court (AJ&K)]

Before Chaudhary Khalid Yousaf, J

MUHAMMAD JAMEEL and another---Appellants

Versus

MUHAMMAD and 2 others---Respondents

Family Appeal No. 31 of 2019, decided on 19th May, 2020.

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

----S. 25---Custody of minor---Welfare of minor---Second marriage of father---Preference of minor---Scope---Father and grandmother of minor assailed order passed by Guardian Judge whereby their application for custody of minor was dismissed---Mother of the minor had died---Father of the minor had been living abroad for earning his livelihood and had also contracted second marriage from which he had four children---Minor had been living with his maternal grandmother since the death of his mother---Father had neglected the minor since his birth---Minor had also shown his desire and affection towards his maternal grandmother--- High Court observed that it would not be in the interest of minor to put him in an alien environment---Appeal of father was dismissed, in circumstances.

1998 SCMR 1593; 1986 CLC 2138 and 2008 CLC 1317 ref.

PLD 1994 AJ&K 1 and Mst. Talat Nasira v. Munawar Sultana and 2 others 1985 SCMR 1367 rel.

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

----S. 17---Guardian, appointment of---Matters to be considered in appointing guardian---Welfare of minor---Right of hizanat---Preference of minor---Scope---Welfare of minor alone is the determining factor while deciding the question of his custody---Paramount consideration must be given to the welfare of minor---Father, as per Islamic Law, is entitled to the custody of his son over seven years of age, but such right of custody of minor is not an absolute right, but the same commensurates with the welfare of the child---Where the circumstances are brought on record to show that in fact the welfare of minor would lie with a person other than the one who was entitled under the personal law, to have the custody of minor, the court should refuse custody to said person---Where, however, the minor is intelligent enough to form his or her opinion, the opinion of the minor was to be considered.

Tahira Zaib v. Ghaffar Ahmed and others 2017 CLC 96 ref.

Mehmood Akhter Qureshi Aleeg for Appellants.

2021 Y L R 150

[High Court (AJ&K) (Mirpur Bench)]

Before Muhammad Sheraz Kiani and Chaudhary Muhammad Muneer, JJ

SheikhADIL MASOOD, ADVOCATE HIGH COURT OF AZAD JAMMU AND KASHMIR, MIRPUR and 40 others---Petitioners

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary and 22 others---Respondents

Writ Petition No. 555 of 2019, decided on 30th January, 2020.

(a) Azad Jammu and Kashmir Natural Calamities (Prevention and Relief) Act, 1976---

----S. 4(2)(j)--- Petitioners sought remission of government dues to inhabitants of natural calamity affected area---Contention of petitioners was that they had affected badly by earthquake and they were entitled for remission of government dues--- Validity--- Relief Commissioner had been vested with vast powers to be exercised during and after any disaster---Commissioner had not exercised his powers so far due to lack of funds who was bound to perform his function independently according to needs of the affectees and provision of funds was the responsibility of Government--- Relief Commissioner should have coordinated with the departments and International Organizations to ensure provision of relief and rehabilitation facilities to the affectees but no such effort had been made---Relief fund should have been established by the Relief Commissioner and Government and same should be at the disposal of Relief Commissioner---Nothing had been done by the Relief Commissioner except compensation to the families of the persons who had died---Relief Commissioner was negligent---Provision of relief after calamity was not a development or routine project which required years for approval rather it was an emergent duty within the domain of Relief Commissioner---Relief Commissioner was directed by the High Court to issue appropriate notification for the relief of affectees of earthquake but he had refused to issue the same---Commissioner had failed to issue the notification which was permitted by law and had failed to perform his duties---Writ petition was maintainable, in circumstances---People of affected area had lost their lives and properties as had happened in the earlier earthquake---Government had remitted dues in the said earthquake and present affectees were in similar condition---No reason existed to disallow the relief of remission of dues to the affectees of present earthquake, in circumstances---Relief Commissioner should provide relief of remission of utility bills of three months to the real affectees of earthquake area---High Court further directed to Government to arrange the funds and manage proper rehabilitation of affectees at the earliest---Writ petition was allowed, in circumstances.

Muhammad Bashir v. Abdul Karim and others PLD 2004 SC 271 and Azad Government of the State of Jammu and Kashmir through Chief Secretary and another v. Abdul Kabeer Qureshi and 51 others 1995 PLC (C.S.) 46 rel.

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

----S. 44---Writ of mandamus, issuance of---Scope.

The writ of mandamus is meant to direct a Government official or functionary to do, what he/it is obliged to do under law and restrain from doing what he/it is prohibited to do under law, so, it cannot be said that if nothing has been done by a Government functionary, the writ cannot be issued usually, the Courts are not supposed to intervene in the Administrative business of the Government functionaries but when, it is brought in the notice of the Court that any of the Government functionary is performing its duties, beyond its jurisdiction, arbitrarily, with mala fide intention or not performing his duties, as ordained by the relevant Law, the High Court is vested with vast powers to intervene, direct and compel the said authority to perform its functions under law.

Sheikh Masood Iqbal, Ch. Khalid Rasheed, Ch. Ashref Ayaz and Sheikh Adil Masood for Petitioners.

Asghar Ali Malik for Respondents.

2021 Y L R 234

[High Court (AJ&K)]

Before Raza Ali Khan, J

Qari MUHAMMAD ARIF---Petitioner

Versus

The STATE through Advocate General of Azad Government and another---Respondents

Revision Petition No. 108 of 2020, decided on 9th July, 2020.

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

----S. 497---Bail---Evidence, assessment of---Only tentative assessment was to be made at bail stage in light of material available on the file.

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

----S. 497---Penal Code (XLV of 1860), S. 452---Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Act (V of 1985), S.10(2)---House-trespass after preparation for hurt, rape---Bail, refusal of---Accused for charged for entering in cattle shed and forcibly committed zina with the sister of complainant---Record showed that accused was directly nominated in the FIR---Victim/minor girl, aged about 11 years, in her statement recorded under S.161, Cr.P.C., specifically implicated the accused in rape---Contention that the accused had been charged falsely with ulterior motive was also misconceived because it was not possible for a minor girl aged 11 years to falsely implicate the accused in such offences specifically in absence of any motive, which could remain a stigma not only for her life but also for her family---Medical report showed that the "hymen of victim" was ruptured which was sufficient to assess that she was subjected to rape---Furthermore, vaginal swabs and anal swabs were sent to Forensic Science Laboratory for analysis and reports in that regard were awaited---Mere non-availability of such reports did not entitle the accused for concession of bail---High Court observed that prima facie, accused was connected with the alleged offence---Even otherwise, the offence was of moral turpitude, which had destroyed the entire life and psychology of a minor girl by putting her and her family to public shame, so the grant of bail in such like case was not proper---Revision petition was dismissed, in circumstances.

Musarat Bibi v. Liaquat Ali and another 1990 PCr.LJ 1570 and Noor Muhammad v. The State 2013 PCr.LJ 1442 rel.

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

----S. 10(2)---Rape---Sole statement of victim---Scope---Sole testimony of the victim of rape would be sufficient for conviction

Tahir Aziz Khan for Petitioner.

Ch. A. Naeem for the Complainant.

2021 Y L R 362

[High Court (AJ&K)]

Before Chaudhary Khalid Yousaf, J

ABD-UR-REHMAN---Petitioner

Versus

AAMIR KHALIL and another---Respondents

Criminal Revision Petition No. 49 of 2020, decided on 24th March, 2020.

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

----S. 497---Bail---Evidence, assessment of---Tentative assessment of record had to be taken into consideration and deeper scrutiny of the evidence was not permissible at bail stage.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 337, 452& 34---Qatl-i-amd, Shajjah, house-trespass after preparation for hurt, common intention---Bail, grant of---Further inquiry---Allegation against accused was that he along with his co-accused entered into the shop of complainant, assaulted on companion of complainant, who later on died---Record showed that it had been alleged in the FIR that the accused came at the shop of the complainant along with co-accused and pushed the deceased whereas co-accused opened straight fire on deceased, who was injured and brought to hospital but did not survive---Co-accused caused the death of the deceased, however, it was not the prosecution's case that the accused caused any injury to the deceased---Allegedly, the accused was present at the place of occurrence and facilitated the principal accused therefore, he was vicariously liable to the commission of alleged offence---Principle of vicarious liability could be looked into at bail stage if from the FIR the principal accused appeared to have acted in preconcert with co-accused who did not cause any injury to the deceased---Prima facie, no such eventuality was present in the present case, however, it would be adjudged after recording evidence---Accused was about fifteen/sixteen years of age; however, age per se was no ground for which bail should necessarily be granted but when no injury was attributed to the accused mere his empty handed presence at the place of occurrence was not sufficient to keep him in jail---Record showed that the age of the accused-petitioner was fifteen years at the time of occurrence who was a student of F.Sc., his studies would suffer if he was kept in jail for indefinite period---After tentative assessment of the FIR, statements recorded under S.161, Cr.P.C and other material collected by the prosecution, no reasonable grounds existed to believe that the accused was prima facie guilty of offence levelled against him---Perusal of record revealed that the accused was empty handed, no allegation of causing any injury to the deceased, he was blamed for pushing the deceased which could be ascertained after recording evidence---Investigation had been completed, challan had been submitted before the court of competent jurisdiction, accused was no more required for any investigation purpose---No legal compulsion was available to keep the person in jail for indefinite period, merely on the ground that he was nominated in FIR---Bail could not be withheld as punishment---Accused was allowed bail, in circumstances.

1985 PCr.LJ 708; 1986 PCr.LJ 1740; 1986 PCr.LJ 1022; 1994 SCR 136; 2004 YLR 2704; 2020 PCr.LJ 147; 2020 YLR Note 16; PLD 1985 Sh.C. (AJ&K) 55; PLD 1986 Sh.C. (AJ&K) 74; PLD 1987 SC (AJ&K) 27; PLD 1988 SC (AJ&K) 14; 1993 SCR 108; 2008 PCr.LJ 351; PLJ 2011 Sh.C. (AJ&K) 80; 2015 SCR 865; 2018 PCr.LJ 270 and 2019 SCR 43 ref.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 rel.

Raja Rafiullah Sultani for Accused/Petitioner.

Mehboob Elahi Chaudhary for the Complainant.

2021 Y L R 405

[High Court (AJ&K)]

Before Muhammad Sheraz Kiani, J

SHAMIM AKHTAR---Petitioner

Versus

MUHAMMAD RAFIQ and 10 others---Respondents

Writ Petition No. 8 of 2009, decided on 3rd February, 2020.

(a) Mirpur Development Authority Ordinance (IV of 1974)---

----S. 18---Amendment of Schemes---Scope---Petitioner challenged alteration in the sector plan and creation of new plot, which was created by reducing the size of his plot---Validity---Substantial changes and amendments could not be made in a master plan without approval of the Government---Amendment in sector plan as well as master plan were made without lawful authority as neither the Authority nor the Government had given the requisite approval---Writ petition was accepted, modification of sector plan, creation of new plot and its allotment in favour of respondent was declared to be illegal, without lawful authority and of no legal effect.

2000 YLR 2050 ref.

Muhammad Iqbal v. Mst. Muneeza Begum and others 1993 SCMR 157; 2012 CLC 928 and Jamil Akhtar v. M.D.A. Mirpur and others Civil Appeal No. 58 of 1995 decided on 12.03.1996 rel.

(b) Affidavit---

----Facts and claims supported by an affidavit, if remain un-rebutted, shall be considered as admitted and true.

Kamran Tariq for Petitioner.

2021 Y L R 437

[High Court (AJ&K)]

Before Raja Sajjad Ahmad Khan, J

BUSHRA BIBI---Petitioner

Versus

The STATE through Additional Advocate General and another---Respondents

Criminal Revision Petition No. 43 of 2020, decided on 30th June, 2020.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 329 & 201---Offence of Zina (Enforcement of Hadood) Act, 1985, S. 10---Qatl-i-amd, concealment of birth by secret disposal of dead body, causing disappearance of evidence of offence---Zina or zina-bil-jabr liable to tazir---Bail, grant of---Further inquiry---Non-availability of forensic report---Effect---Allegation against accused was that due to committing adultery with co-accused she gave birth to a child who after delivery was killed and thrown in a stream---Record showed that the dead body of newborn baby was recovered from the stream and his DNA samples along with samples of accused persons were sent for examination and reports were not brought on record as yet---Accused persons who had committed adultery with the accused were also enlarged on bail, while there was no sufficient evidence brought on record that newborn child was alive or he was killed by anybody, thus matter required further probe in offence under S.302, P.P.C.---Petition for grant of bail was allowed, in circumstances.

2001 PCr.LJ 575; 1992 PCr.LJ 412; 2005 YLR 692 and 2005 YLR 1634 ref.

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

----S.497---Bail---Tentative assessment---Scope---Tentative assessment of the record has to be taken into consideration at bail stage and deeper scrutiny of the evidence is neither permissible nor desirable---Courts however, are not expected to pass a bail order in vacuum.

Muhammad Arif v. Babar and another 2014 SCR 916 rel.

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

----S. 497---Bail---Scope---Bail cannot be withheld as a punishment. [p. 440] C

Sardar Bilal Shakeel for Accused/Petitioner.

2021 Y L R 753

[High Court (AJ&K)]

Before Raza Ali Khan, J

ADNAN FREEZUM KHAN---Petitioner

Versus

STATE through Advocate General of Azad Jammu and Kashmir, Muzaffarabad and 2 others---Respondents

Criminal Revision Petition No. 87 of 2020, decided on 22nd June, 2020.

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

----S.497---Penal Code (XLV of 1860), S. 302---Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Act (V of 1985), S. 12---Azad Jammu and Kashmir Juvenile Justice System Act (XX of 2003), S. 10---Qatl-i-amd---Bail, refusal of---Accused was charged of committing sodomy with son of complainant and murdering him---Accused claimed bail under S.10 of Azad Jammu and Kashmir Juvenile Justice System Act, 2003, as he was aged under sixteen years---Scope---According to prosecution version age of accused was more than 15 years---Any such accused involved in offence of heinous nature could not claim any concession on the basis of minor age---Manner of commission of the offence indicated an evil and well planned design of accused, which indicated his matured skill and approach than that of an innocent child---Medical evidence, indicating that the accused was major, could not be ignored and he could not claim shelter of tender age---Wisdom behind the Azad Jammu and Kashmir Juvenile Justice System Act, 2003 was welfare and betterment of minors, who were innocent offenders and not the accused of matured minded criminals, who were trying to hide themselves behind the shield of Azad Jammu and Kashmir Juvenile Justice System Act, 2003---Prima facie, good evidence was available on record which was supported by his criminal track record---Any concession under special law could be extended to a minor accused during trial or at the time of final decision but not at the stage of bail, specially when he had attained the majority---No infirmity was found in the impugned order for declining the bail passed by Trial Court---Revision petition was dismissed accordingly.

2017 SCR 415, 420, 986, 428 ref.

Farmanullah v. The State 2005 PCr.LJ 1500 rel.

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

----S. 497---Azad Jammu and Kashmir Juvenile Justice System Act (XX of 2003), S. 10---Minor accused---Scope---Minority per se was no ground for grant of bail---Provision of S.10 of Azad Jammu and Kashmir Juvenile Justice System Act, 2003, imposed a embargo in that regard---Juvenile Act, 2003, no doubt, had solemn purpose to achieve betterment of children/juvenile accused but it did not consider as shelter for those Juvenile offenders who had got criminal record and criminal psychology---Wisdom behind the Azad Jammu and Kashmir Juvenile Justice System Act, 2003 was reformation but not completely avoid "retributive theory"---If there was found that ends of justice would be defeated or goal desired by legislature could be achieved by detaining a Juvenile accused in jail, bail should be denied to him.

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

----Ss. 497(2) & 173---Bail---Trial had commenced--- After completion of investigation and submission of report under S.173, Cr.P.C. (Challan) and when trial was likely to commence or begin, bail application should not be decided on merits and matter be left to the Trial Court because it might be prejudiced the case of either party.

1980 SCMR 203; PLD 1989 SC 585; 1992 SCMR 1418; 1992 SCMR 931 and 2011 SCMR 1691 rel.

Raja Muhammad Altaf Khan for Petitioner.

Akhlaq Hussain Kiani, A.A.G. for the State.

2021 Y L R 785

[High Court (AJ&K)]

Before Muhammad Sheraz Kiani and Chaudhary Muhammad Munir, JJ

MUHAMMAD ARSHAD---Appellant

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 12, 19 of 2010 (old) 17 and 18 of 2017 (new), decided on 10th March, 2020.

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

----S. 154---First information report---Scope---First Information Report was neither a detail document nor a substantive piece of evidence---FIR was lodged just to move the police machinery for investigation of the alleged occurrence.

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

----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---In the present case, the complainant/ deceased himself reported the matter in an injured condition which itself manifested that the occurrence took place---Initial report of complainant/ deceased could also be considered as dying declaration because at that time he was in serious pain and thereafter died, thus, the statement of the deceased itself was sufficient to prove the guilt of the convict---Appeal against conviction was dismissed, in circumstances.

(c) Criminal trial---

----Witness---Interested and related witness--- Reliance--- Scope--- Mere relationship is no ground for discarding evidence of the witness unless and until his/her enmity with accused is established and the evidence is given on account of such enmity.

Muhammad Khurshid Khan v. Muhammad Basharat and another PLD 2007 SC (AJ&K) 27 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Accused was charged for committing murder of the complainant/ deceased by inflicting stick and kick blows---Motive behind the occurrence was stated to be previous enmity---Record showed that no enmity of the witnesses with the accused was attributed and established---Prosecution witnesses were put to lengthy searching cross-examination but nothing favourable to defence came out from their mouth---Minor discrepancies could not mar the prosecution case---Although, it was evident from the record that deceased was an old aged person and might have been suffering from different diseases including high blood pressure and constipation at the time of occurrence---Fact remained that act of accused of causing injuries resulted into the death of the deceased---Oral and post-mortem report if considered in juxtaposition it had amply proved that the death of the deceased was caused due to the internal injuries caused by the accused---Although, injuries had been caused by accused, however, it was established that accused had not come at the spot prepared to kill the deceased as he was not armed with any deadly weapon to cause injuries---Fist and kick blows were used to cause injuries---Conviction and sentence could not be passed against accused under S.302(b), P.P.C., in circumstances---Facts of the case suggested that the accused's intention was only to cause harm to the body of the victim and not his death and that would be an offence of Qatl-Shibh-i-amd, punishable under S.316, P.P.C. not a murder liable to be punished under S.302, P.P.C.---Therefore, accused was liable to sentence under S.316, P.P.C., instead of S.302(b), P.P.C.---Impugned judgment of the Trial Court was found to be quite in accordance with law---Appeal against conviction was dismissed.

2001 PCr.LJ 954; 2007 PCr.LJ 281 and 2002 PCr.LJ 388 ref.

Muhammad Nawaz and 2 others v. The State 2003 MLD 1409 rel.

(e) Criminal trial---

----Witnesses, examination of---Number of witnesses---Scope---Discretion laid with the prosecution to examine the witnesses of its own choice---Prosecution could not be compelled to examine each and every witness who had been cited or not.

2017 PCr.LJ 731 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive was not proved---Scope---Accused was charged for committing murder of the complainant/ deceased by inflicting stick and kick blows---Motive behind the occurrence was stated to be previous enmity---In the present case, different motives had been alleged by the prosecution and they remained obscure and had not been positively proved---Motive though not a sine qua non for bringing the offence of murder at home but it had importance regarding the quantum of sentence.

(g) Criminal trial---

----Motive---Scope---If the motive for the offence is shrouded in mystery then the extreme penalty is not warranted.

Muhammad Ali v. The State 1988 PCr.LJ 307 rel.

Muhammad Younas Arvi for Convict/Appellant Muhammad Arshad.

Raja Mazhar Iqbal for Appellants/ legal heirs, Sajida Parveen and another.

2021 Y L R 819

[High Court (AJ&K)]

Before Sardar Mohammad Ejaz Khan and Raja Sajjad Ahmad Khan, JJ

TAIMOOR alias QAZI and others---Appellants

Versus

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

Criminal Appeals Nos. 72, 73, 74 and Murder Reference No.35 of 2017, decided on 30th April, 2020.

(a) Criminal trial---

----Circumstantial evidence--- Scope---Conviction could be recorded in a case carrying death sentence on the basis of circumstantial evidence, if it excluded all hypothesis of innocence of accused---Circumstantial evidence was to be accepted with great caution and be scrutinized minutely for reaching to the conclusion that no other plausible conclusion can be drawn except the guilt of the accused.

(b) Criminal trial---

----Circumstantial evidence--- Scope---Prosecution is duty bound to prove every circumstance independently as is so connected with other circumstances, which constituted an unbroken chain which leads to no other inference but to the guilt of accused.

Mohammad Basharat v. Saqib Shah 2013 PCr.LJ 619 rel.

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

----Ss. 302, 377 & 34---Arms Act (XX of 1965), S. 13---Qatl-i-amd, sodomy, common intention, possessing unlicensed weapon---Appreciation of evidence---Sentence, modification of---Last seen evidence---Scope---Accused were charged that they murdered the son of complainant and threw his dead body in the stream---Complainant, who was father of the deceased, had deposed that his son was working with accused at his sawmill and on the day of occurrence accused and deceased were together at the sawmill---Witness, who was the waiter at a nearby hotel, stated that he provided meal at sawmill where accused and deceased were present together---One Mistri (worker) whose presence at the sawmill was admitted by the defence, also admitted the presence of accused and deceased at sawmill at the relevant time in his statement recorded under S.164, Cr.P.C.---Accused got recorded his statement under S.340(2), Cr.P.C., wherein he clearly admitted the presence of accused and deceased at his sawmill---From scanning the said evidence, it could safely be concluded that deceased remained alive in the company of accused before he was murdered---Circumstances established that the charge of murder was proved against accused beyond any shadow of doubt and no mitigating circumstances to commute death sentence being available, the sentence of death awarded to accused was maintained---Role of co-accused persons was distinguishable as compared to accused---Co-accused persons were entitled to get the benefit of doubt on the question of sentence, in circumstances---Conviction of co-accused persons was maintained, however, imprisonment awarded to them by Trial Court was altered to the sentence already undergone---Appeals against conviction were dismissed with said modification.

2019 SCR 105; 2019 SCR 149; 2018 SCR 260; 2015 SCR 533; 2007 SCR 332; 2010 PCr.LJ 1567; 2013 YLR 1418; 2006 PCr.LJ 1359; 2007 PCr.LJ 868; 2014 PCr.LJ 374; 2009 SCR 252; 1981 PCr.LJ 486; 2007 SC (AJ&K) 77; 2014 PCr.LJ 374; PLD 2007 SC (AJ&K) 27; PLD 2004 SC 633; 2018 SCR 661; PLD 1992 SC (AJ&K) 211; 1998 SCMR 1823; 1997 PCr.LJ 376; 1996 PCr.LJ 616; 2001 PCr.LJ 268; 1995 SCMR 1793; 2005 PCr.LJ 1606 and PLD 2004 SC(AJK) 32 ref.

Israr Ali v. State 2007 SCMR 525 rel.

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

----Ss. 302, 377 & 34---Arms Act (XX of 1965), S. 13---Criminal Procedure Code (V of 1898), S. 161---Qatl-i-amd, sodomy, common intention, possessing unlicensed weapon---Appreciation of evidence---Sentence, modification of---Delay in recording the statements of witnesses by police---Scope---Accused were charged that they murdered the son of complainant and threw his dead body in the stream---Record showed that two prosecution witnesses prior to murder, had seen the accused and deceased while quarrelling, they rescued the deceased but accused extended threats, upon which they returned back to the room---Witnesses deposed that on next day they went on the spot along with complainant and remained there but both those witnesses did not disclose the whole episode to anyone immediately after the occurrence---Statements of said witnesses under S.161, Cr.P.C., were recorded with a delay of sixteen days without furnishing any explanation, which created doubt upon their statements, which could not be relied upon---Circumstances established that the charge of murder was proved against accused beyond any shadow of doubt and no mitigating circumstances to commute death sentence being available, the sentence of death awarded to accused was maintained---Role of co-accused persons was distinguishable as compared to accused---Co-accused persons were entitled to get the benefit of doubt on the question of sentence, in circumstances---Conviction of co-accused persons was maintained, however, imprisonment awarded to them by Trial Court was altered to the sentence already undergone---Appeals against conviction were dismissed with said modification.

Mohammad Basharat v. State 2013 PCr.LJ 619 rel.

(e) Criminal trial---

----Last seen evidence---Evidentiary value---Last seen evidence was generally regarded as a weak evidence---No conviction could be based on it unless there was some strong corroborative piece of evidence in support of prosecution.

Mohammad Basharat v. Saqib Shah 2013 PCr.LJ 619 rel.

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

----Ss. 302, 377 & 34---Arms Act (XX of 1965), S. 13---Qatl-i-amd, sodomy, common intention, possessing unlicensed weapon---Appreciation of evidence---Sentence, modification of---Weapon of offence was recovered on the pointation of accused---Reliance---Scope---Accused were charged that they murdered the son of complainant and threw his dead body in the stream---Record showed that on the pointation of accused, weapon of offence, through which he caused sharp edge injuries to deceased, was also recovered from sawmill---Recovery witnesses were also produced by the prosecution---Nothing had been brought on record for believing that said witnesses had some enmity or motive to falsely implicate accused---Circumstances established that the charge of murder was proved against accused beyond any shadow of doubt and no mitigating circumstances to commute death sentence were available---Sentence of death awarded to accused was maintained, in circumstances--- Role of co-accused persons was distinguishable as compared to accused---Co-accused persons were entitled to get the benefit of doubt on the question of sentence, in circumstances---Conviction of co-accused persons was maintained, however, imprisonment awarded to them by Trial Court was altered to the sentence already undergone---Appeals against conviction were dismissed with said modification.

(g) Criminal trial---

----Witness---Related witnesses---Scope---Mere relationship between witnesses and deceased was not enough to discard their evidence unless they had motive to falsely implicate the accused---Each case was to be decided keeping in view its peculiar facts.

(h) Criminal trial---

----Minor discrepancies---Scope---Minor discrepancies could not be termed as contradiction---Contradiction mean the negation of prosecution version.

Waris Hussain Shah v. Abid Hussain Shah and others 2001 PCr.LJ 268 rel.

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

----Ss. 302, 377 & 34---Arms Act (XX of 1965), S. 13---Qatl-i-amd, sodomy, common intention, possessing unlicensed weapon---Appreciation of evidence---Sentence, modification of---Recovery of blood-stained articles--- Reliance---Scope---Accused were charged that they murdered the son of complainant and threw his dead body in the stream---Record showed that the recovered items, which were stained with blood, i.e. clothes of deceased, knife and clay were sent to Chemical Examiner who reported that all the said articles were stained with the human blood---Post-mortem report and Chemical Examiner's Report fully supported the prosecution case---Circumstances established that the charge of murder was proved against accused beyond any shadow of doubt and no mitigating circumstances to commute death sentence was available---Sentence of death awarded to accused was maintained, in circumstances---Role of co-accused persons was distinguishable as compared to accused---Co-accused persons were entitled to get the benefit of doubt on the question of sentence, in circumstances---Conviction of co-accused persons was maintained, however, imprisonment awarded to them by Trial Court was altered to the sentence already undergone---Appeals against conviction were dismissed with said modification.

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

----Ss. 302, 377 & 34---Arms Act (XX of 1965), S. 13---Qatl-i-amd, sodomy, common intention, possessing unlicensed weapon--- Appreciation of evidence---Sentence, modification of---Accused were charged that they murdered the son of complainant and threw his dead body in the stream---Accused had been acquitted by the Trial Court of the charge under S.377, A.P.C. by observing that it was not clear that who had committed the sodomy with the deceased, however, whole scheme of happenings revealed that there was a struggling between accused and deceased for the reason that accused were trying to overpower the deceased for committing sodomy while he was resisting---During that struggle deceased made hue and cry which was heard by the witnesses who got recorded their statements under S.161, Cr.P.C., immediately after the occurrence and narrated as it was before the court, which also remained unrebutted as no cross-examination was conducted on said point---Such fact showed that defence had admitted their statements as correct---All the said circumstances were interlinked, which clearly connected the accused with the crime---Accused got recorded their statements under S.340(2), Cr.P.C., and simply denied their guilt and failed to rebut their company with deceased at the relevant time---In view of Art. 21 of Qanun-e-Shahadat, 1984, accused also failed to furnish any explanation as to when they separated from the deceased or on which point and where deceased separated from them---Circumstances established that the charge of murder was proved against accused beyond any shadow of doubt---No mitigating circumstances to commute death sentence being available, the sentence of death awarded to accused was maintained, in circumstances---Role of co-accused persons was distinguishable as compared to accused---Co-accused persons were entitled to get the benefit of doubt on the question of sentence, in circumstances---Conviction of co-accused persons was maintained, however, imprisonment awarded to them by Trial Court was altered to the sentence already undergone---Appeals against conviction were dismissed with said modification.

M. Amin v. State 2012 YLR 1360 and Khurshid v. State PLD 1996 SC 305 rel.

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

----S. 340(2)---Statement of accused in defence---Scope---Section 340(2), Cr.P.C. enabled accused to explain his position especially where no direct evidence was available.

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

----Ss. 302, 377 & 34---Arms Act (XX of 1965), S. 13---Qatl-i-amd, sodomy, common intention, possessing unlicensed weapon---Appreciation of evidence---Sentence, modification of---Delay in sending the recovered items for analysis---Scope---Accused were charged that they murdered the son of complainant and threw his dead body in the stream---In the present case, defence objected that report of Chemical Examiner could not be relied upon as recovered items were sent to Chemical Examiner with a considerable delay and report of Serologist was not placed on record---Record revealed that parcels of recovered items remained in safe custody in "Malkhana" and after required proceeding and precaution were dispatched to Forensic Science Laboratory---Sending the recovered items to Examiner with delay or non sending said articles to Serologist did not make the prosecution case doubtful as defence never raised any objection that recovered articles were substituted or those were not stained with deceased's blood---Circumstances established that the charge of murder was proved against accused beyond any shadow of doubt---No mitigating circumstances to commute death as awarded to accused being available, the sentence of death was maintained---Role of co-accused persons was distinguishable as compared to accused---Co-accused persons were entitled to get the benefit of doubt on the question of sentence, in circumstances---Conviction of co-accused persons was maintained, however, imprisonment awarded to them by Trial Court was altered to the sentence already undergone---Appeals against conviction were dismissed with said modification. (m) Criminal trial---

----Site plan---Evidentiary value---Site plan is not considered as a substantive piece of evidence.

(n) Criminal trial---

----Investigation---Lapses on the part of Investigating Officer---Effect--Court had to form its opinion according to its own satisfaction keeping in view the facts and circumstances of the case---Mere mistakes or technical lapses of Investigating Officer or prosecution should not be considered a ground for creating doubt.

Khurshid v. State PLD 1996 SC 305 and Kabir Shah v. State PLD 1984 (SCAJK) 82 rel.

(o) Criminal trial---

----Sentence--- Sentencing range---Principles---If the offence was proved, maximum sentence provided for the offence was to be awarded, however, court had a discretion to award sentence keeping in view the circumstances of each case justifying the severity or leniency.

Waris Shah v. Abid Hussain Shah 2001 PCr.LJ 268 rel.

Sardar Waheed Arif for Convict/ Appellants.

Raja Ayyaz Fareed, Assistant Advocate General for the State.

2021 Y L R 1155

[High Court (AJ&K)]

Before Muhammad Sheraz Kiani, J

Malik MUHAMMAD AZEEM---Appellant

Versus

Mst. SAHIRA BIBI and 8 others---Respondents

Civil Appeal No. 188 of 2015, decided on 27th August, 2020.

(a) Islamic law---

----Gift--- Validity--- Scope--- Appellant filed suit for declaration and permanent injunction along with possession claiming therein that he was owner to the extent of his share 3/4th and widow of deceased to the extent of her share i.e. 1/4th from the total land and that the gift deeds procured by the defendants were obtained through exercise of undue influence---Courts below dismissed the suit---Validity---Contention of appellant, that one of the defendants was not close relative of the deceased, hence, the gift deed in his favour was liable to be cancelled, had no value in the eyes of law, as the appellant had failed to refer any law which provided that gift deed could only be executed in favour of close relatives---Other contention of appellant that at the time of execution of gift deed the donor was severally ill and 90 years old had no force because no medical certificate of the deceased from the concerned hospital was produced which could show that at the time of execution of the deeds, the donor was suffering from a disease which could create an impression of his immediate death---Judgments and decrees passed by courts below were upheld---Appeal was dismissed with costs.

2005 YLR 2388 ref.

(b) Islamic law---

----Gift---Inheritance---Scope---Owner can make a gift of his property to any person of his own choice---Question of inheritance arises only to the extent of property left by the deceased owner.

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

----S. 100---Second appeal---Concurrent findings of facts---Scope---Concurrent findings of facts recorded by the Trial Court and the first appellate court cannot be disturbed by the High Court, unless an irregularity or illegality has been committed by the Courts below in appreciation of evidence and there is a case of misreading or non-reading of evidence.

Ch. Muhammad Ismail for Appellant.

2021 Y L R 1313

[High Court (AJ&K)]

Before Sadaqat Hussain Raja, J Kh. AAMIR AHMED---Petitioner

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR

through Chief Secretary and 6 others---Respondents

Writ Petitions Nos. 670-A and 691 of 2021, decided on 19th March, 2021.

(a) Azad Kashmir Service Regulations---

----Regln. 35-A---General Financial Rules (GFR), Vol. I, Chap. 6, Paras. 116 & 117---Acting Chief Justice of High Court [Azad Jammu and Kashmir (AJ&K)]---Dispute regarding date of birth---Date of birth entered in Matriculation certificate---Significance---Petitioner contended that in the impugned notification the retirement date of the respondent/Acting Chief Justice of High Court (AJ&K) was mentioned as 22-03-2021, whereas in terms of the respondent's service pay record along with his passport and Computerized National Identity Card (CNIC), his retirement date should be 23-02-2021---Held, that according to Regln. 35-A of the Azad Kashmir Service Regulations, the date of birth mentioned in Matriculation certificate was taken into consideration for the purpose of retirement, and not the date mentioned in CNIC or salary slips---Available service record of respondent i.e. Matriculation certificate, Annual Confidential Reports (ACRs), Advocacy License, Pleader-ship License except the CNIC and salary slips, mentioned the date of birth of respondent as 23-03-1959, and thus supported the date of retirement of respondent i.e. 22-03-2021 mentioned in the impugned notification---According to the essential service record, the date of birth of respondent was 23-03-1959, which could not be subsequently changed by other documents i.e. CNIC and pay slips---Writ petition challenging the impugned notification was disposed of.

In all documents relating to service of respondent/Acting Chief Justice of High Court (AJ&K), his date of birth was entered as 23-03-1959, whereas, in his Computerized National Identity Card (CNIC) and Salary Slip, the date of birth was entered as 23-02-1959. In the service record and Matriculation Certificate of respondent his date of birth was entered as 23-03-1959. Respondent was inducted in service through Public Service Commission and it was an admitted fact that accruing to the rules the Public Service Commission determined eligibility regarding age according to the matricula-tion certificate which remained as part of respondent's service record. Respondent was inducted into service on the basis of his Matriculation Certificate, therefore, it could not be assumed that it was a fault on his part.

According to Pleader-ship License, Provisional Certificate issued by the relevant law college and Secondary School Certificate, the date of birth of respondent was mentioned as 23-03-1959.

The service record of respondent since the year 1991 up to his elevation as a Judge of High Court was also produced by Audit and Accounts Department. The said record consisted of Matriculation Certificate and ACRs etc. In the said documents, the date of birth of respondent was also the same i.e. 23.03.1959. Accord-ing to the essential service record, the date of birth of respondent was 23.03.1959, which could not be subsequently changed by other documents i.e. CNIC and pay slips.

According to Regulation 35-A of the Azad Kashmir Service Regulations, the date of birth mentioned in Matric certificate was taken into consideration for the purpose of retirement, and not the date mentioned in CNIC or salary slips. Furthermore when a Government employee entered in service on ad-hoc or permanent basis, the basic requirement for getting the job was the Matriculation Certificate or Municipal Birth Certificate.

Akbar Khan v. Karachi Transport Corporation 1988 PLC 135 and Muhammad Abdul Rehman Abbasi v. Azad Government and 7 others 2015 SCR 1083 ref.

Admittedly, respondent had never processed to change, amend or alter his date of birth as entered at the time of his appointment in service.

(b) Administration of justice---

----No one could be penalized for any fault/act of the (concerned) authority.

Muhammad Irfan Ali Gorsi v. Azad Government and 6 others 2014 SCR 710 and University of AJ&K and 8 others v. Mir Muhammad Hanif and 20 others 2019 SCR 533 ref.

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

----Ss. 42(4), 43(2-A) & 43-A---Chief Justices and Judges of the Supreme Court and High Court, Azad Jammu and Kashmir (AJ&K)---Appointment---Recommendation of Chief Justice of the Supreme Court (AJ&K)---Scope---Most senior Judge of the Supreme Court (AJ&K) or High Court (AJ&K) had a legitimate expectancy to be considered for appointment as the Chief Justice and in the absence of any concrete and valid reasons to be recorded by the President/ Executive, he was entitled to be appointed as such in the respective Court---President (AJ&K) was bound to make confirmation order of appointing the Chief Justice of High Court (AJ&K) on the basis of valid recommendations of Chief Justice of the Supreme Court (AJ&K).

Admittedly, in the present case the respondent was the senior most Judge of the High Court, Azad Jammu and Kashmir (AJ&K), therefore, he was recommended by the Chief Justice of Supreme Court (AJ&K) as Chief Justice of High Court (AJ&K), but after a lapse of considerable time, his advice was not issued by the Chairman Kashmir Council and respondent remained Acting Chief Justice of High Court (AJ&K) for more than one and half year.

President (AJ&K) was bound to make confirmation order in favour of respondent as Chief Justice of High Court (AJ&K) on the basis of valid recommendations of Chief Justice of the Supreme Court (AJ&K) but unfortunately, the concerned authorities failed to perform their Constitutional duty due to one reason or the other, which was clear cut violation of the judgments of the Supreme Court of Pakistan as well as the Supreme Court of Azad Jammu and Kashmir.

Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324 and Malik Asid Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1996 SC 161 ref.

Muhammad Younas Tahir's case PLD 2012 SC (AJ&K) 42 ref.

The most senior Judge of the Supreme Court (AJ&K) or High Court (AJ&K) had a legitimate expectancy to be considered for appointment as the Chief Justice and in the absence of any concrete and valid reasons to be recorded by the President/Executive, he was entitled to be appointed as such in the respective Court.

High Court (AJ&K) directed that the concerned authorities shall complete the process for permanent appointment of Chief Justices of the Supreme Court and High Court of Azad Jammu and Kashmir within a period of thirty days; that all the other vacant positions of Judges in both the Courts should be filled within next one month after permanent appointment of Chief Justices of the Supreme Court and the High Court, and that the notification of retirement of respondent shall be modified (to show him) as Chief Justice of High Court (AJ&K) (instead of Acting Chief Justice).

Fayyaz Ahmed Janjua for Petitioner (in both Writ Petitions).

Raja Ayaz Farid and Khursheed Anwar Mughal, Assistant Advocate Generals for the Official Respondents.

2021 Y L R 1426

[High Court (AJ&K)]

Before Muhammad Sheraz Kiani, J

SHAH HUSSAIN SHAH---Appellant

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Secretary Revenue and 15 others---Respondents

Civil Appeal No. 147 of 2015, decided on 18th September, 2020.

Land Revenue Act (XVII of 1967)---

----S. 172---Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers---Correction of revenue record---Scope---Appellant filed suit for declaration that he was owner in possession of suit land while contending therein that the same was wrongly entered by revenue authorities in the name of private defendant; that he approached the revenue authorities for correction of revenue record and that the Collector, after due proceedings, arrived at the conclusion that the land in dispute was 'Khalsa Sarkar'---Trial Court returned the plaint for want of jurisdiction---Review petition was dismissed---District Court, on being appealed, dismissed the same vide impugned judgment and decree---Validity---Appellant, against the order of Collector, should have filed an appeal before the next higher revenue authority---Civil court had no jurisdiction to try such a suit under S.172(2)(vi) of Land Revenue Act, 1967---Case was one of correction of revenue record and not of question of title between the parties---No illegality or irregularity, whatsoever, was committed by the Courts below while passing the impugned judgments and decree---Appeal was dismissed.

2017 CLC 24 and 2007 YLR 960 distinguished.

Syed Riaz Hussain Naqvi for Appellant.

2021 Y L R 1562

[High Court (AJ&K)]

Before Azhar Saleem Babar, A.C.J. and Muhammad Sheraz Kiani, J

MUHAMMD BAKHASH and 2 others---Appellants

Versus

INAYAT BI and 13 others---Respondents

Civil Appeal No. 326 of 2008, decided on 19th September, 2020.

(a) Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (B.K.)---

----S. 20---Suit to enforce right of prior purchase (Pre-emption)---Principle of sinker---Evidence beyond pleadings---Scope---Respondents' predecessor-in-interest filed suit for possession on the basis of his right of prior purchase---Trial Court decreed the suit whereas appeal filed against the decree was dismissed---Contention of appellants was that principle of sinker did not apply to the case as it had no statutory backing and that the suit land was divisible---Validity---Held; there was no mention in the written statement that the land was sold separately and the appellants also did not take such plea while filing common written statement---Evidence, beyond the pleadings, could not be relied upon---One of the appellants was not a co-sharer in the suit land while other two were co-sharers, therefore, the two appellants, despite having right of prior purchase, stood disentitled from their claim due to joinder and association of a stranger under the principle of sinker---Share of consideration amount was also not separately specified in the sale deed---Doctrine of sinker had been followed by the Superior Courts for more than a century and the appellants could not refer any principle from the injunctions of Islam or Fatwa or authority that the principle of sinker was not according to the Tenets of Islam---Appeal was dismissed.

PLD 1984 AJ&K 38; PLD 1978 SC (AJ&K) 156; PLD 1983 SC (AJ&K) 188; 2008 CLC 332; PLD 1982 Lah. 568 and 1987 CLC 815 ref.

Raja Muhammad Saeed Khan v. Sardar Khani Zaman and 11 others PLD 2007 SC (AJ&K) 63 rel.

(b) Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (B.K.)---

----S. 20---Suit to enforce right of prior purchase---Principle of sinker---Scope---Where a pre-emptor having the right of pre-emption associates with him a person, having no right or inferior right of purchase of suit land, under the principle of sinker, he disentitles himself from his right of pre-emption---Likewise, if a purchaser, who has also prior right of purchase being co-sharer but associates with himself a stranger in purchase and the land is indivisible and the consideration amount is paid in lump sum without separating or specification of fractional share of each purchaser, in such cases the co-sharer/vendee will also sink with the stranger vendee notwithstanding the fact that their shares in sale-deed are mentioned separately---To save oneself from the mischief of doctrine of sinker, it is necessary for the vendee that along with his separate share, his separate specified amount of consideration must also be mentioned in the deed, only then, his share in the purchased land shall be considered as divisible.

AIR 1924 L 46; AIR 1928 L 784; 1987 CLC 815 and Muhammad Mukhtar Khan's case 2008 CLC 332 ref.

Mureed Hussain and another v. Muhammad Shafi and another 1980 CLC 1753 and Sultan Muhammad and 3 others v. Nawab Khan and another PLD 1982 Lah. 568 rel.

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

----O. XX, R. 5---Court to state its decision on each issue---Scope---Where all issues were comprehensively dealt and decided, mere non-mentioning of the number of each issue becomes a technical question.

Kamran Tariq for Appellants.

2021 Y L R 27

[Islamabad]

Before Athar Minallah, C.J. and Ghulam Azam Qambrani, J

NIZABAT MEHMOOD---Appellant

Versus

The STATE through S.I., Police Station, Bara Kahu, Islamabad---Respondent

Criminal Appeal No. 39 of 2014, decided on 30th July, 2020.

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

----S. 9(b)---Narcotic substance, recovery of---Appreciation of evidence---Safe transmission---Proof---Benefit of doubt---Chars Garda weighing 2000 grams was alleged to have been recovered from the possession of accused---Discrepancies in testimonies of two prosecution witnesses, non-producing of police official to prove safe transmission of parcel to the office of Chemical Examiner and non-separation of samples from each piece were matters of concern and collectively incredulity---Prosecution failed to establish case against accused beyond reasonable doubt---Material contradictions existed in statements of prosecution witnesses, which rendered the case doubtful---Safe transmission of alleged recovered contraband was also not established---High Court set aside conviction and sentence awarded to accused by Trial Court and acquitted him of the charge---Appeal was allowed, in circumstances.

Minhaj Khan v. The State 2019 SCMR 326; Ameer Zeb v. The State PLD 2012 SC 380; Haji Nawaz v. State 2020 SCMR 687; State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039; Ikramullah and others v. The State 2015 SCMR 1002; Amjad Ali v. The State 2012 SCMR 577 and Siraj-ud-Din v. The State (Criminal Appeal No.579 of 2017) ref.

Raja Rizwan Abbasi for Appellant.

Zohaib Hassan Gondal, State Counsel with Asif Riaz Sub-Inspector and Jamshad Khan Inspector for the State.

2021 Y L R 43

[Islamabad]

Before Fiaz Ahmad Anjum Jandran, J

MUHAMMAD YOUSAF---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE-VII, (WEST) ISLAMABAD and 2 others---Respondents

Writ Petition No. 219 of 2020, decided on 11th September, 2020.

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

----S. 5, Sched.---Suit for jactitation of marriage---Maintainability---For entertaining a suit for jactitation of marriage, foundation of marriage i.e. Nikahnama and existence of valid marriage is to be made subject of that litigation.

Black's Law Dictionary, Eleventh Edition and Muhammad Anwar v. Mst. Shagufta Ahmad and 2 others 2004 PCr.LJ 1071 rel.

(b) Family Courts Act (XXXV of 1964)---

----S.5---Specific Relief Act (I of 1877), S.42---Jactitation of marriage---Valid marriage, determination of---Parties were husband and wife inter se and husband sought jactitation of marriage on the plea that divorce pronounced by him was revoked and there existed a valid marriage---Wife resisted the suit on the ground that divorce pronounced by her husband attained finality and there remained no valid marriage between them---Family Court decreed the suit in favour of husband but Lower Appellate Court dismissed the same---Validity---Issue between parties was not whether marriage was in existence or otherwise but a question as to whether, Talaq had become effective or was revoked as alleged by husband---Findings of Lower Appellate Court regarding dismissal of suit of husband was not based on any of the documents and evidence available on record---Documents i.e. divorce deed, Talaq effectiveness certificate, order of revenue authorities, statement of wife during proceedings before Arbitration Council, her stance during first suit for maintenance and recovery of dower and subsequent claim were neither considered nor discussed---No observation with regard to such documentary evidence was rendered which had made the judgment result of misreading and non-reading of evidence and illegality floating on the surface of record---Lower Appellate Court proceeded to dismiss suit of husband by treating it as suit for declaration---High Court observed that when it was established that proceedings before Family Court were coram non judice, proper course was to return the plaint for its presentation before Court of competent jurisdiction---Lower Appellate Court while hearing appeal against judgment and decree of Family Court, wrongly dismissed suit for declaration, when there was no appeal filed / pending before him in civil suit against declaratory decree under S. 42 of Specific Relief Act, 1877---To the extent of dismissal of suit of husband by treating it as a declaratory suit, was an order without jurisdiction---High Court set aside judgments and decrees passed by two Courts below and remanded suit for jactitation of marriage to Family Court to decide the same afresh by considering the suit for declaration---Constitutional petition was allowed accordingly.

Irshad Ahmad v. Muhammad Sharif and another PLD 2006 Lah. 260; Nasrullah v. District Judge PLD 2004 Lah. 588; Mohammad Akram v. Hajira Bibi PLD 2007 Lah. 515; PLD 2011 SC 260 and Mst. Sadia Khan v. Muhammad Asim Khan and another 2001 CLC 330 rel.

Malik Babar Hamid for Petitioner.

Respondent No.3 in person.

2021 Y L R 194

[Islamabad]

Before Athar Minallah, C.J. andMiangul Hassan Aurangzeb, J

CAPITAL DEVELOPMENT AUTHORITY through Chairman---Appellant

Versus

Messrs SIGNAGE SECURITY SYSTEMS (PVT.) LTD. through Accounts and Administrative Manager---Respondent

R.F.A. No. 10 of 2015, decided on 2nd May, 2019.

Arbitration Act (X of 1940)---

----Ss. 17, 30 & 39---Arbitration award---Misconduct---Counter claim, non-considering of---Appellant was aggrieved of award made rule of the Court on the plea that the Arbitrator did not consider counter claim---Validity---Agreement between the parties did not, in any manner, prevent appellant from raising a counter claim against respondent---Arbitrator awarded Rs.231.42 million in favour of respondent without taking into consideration the counter claim of appellant---Error existed apparently on the face of arbitration award rendering the same unsustainable---Court while scrutinizing award during hearing of objections could not sit as a Court of appeal but it was obligatory upon the Court to examine the award in order to determine invalidity or inconsistency with the provisions of the contract---Division Bench of High Court remanded the matter to arbitrator for rendering award afresh as there was sufficient cause and material on record to remit the same---Appeal was allowed accordingly.

Pakistan Steel Mills Corporation Limited v. Progressive Engineers Alliance Limited 2009 CLC 100 rel.

G. Shabbir Akbar, Aamir Latif Gill and Saadia Noreen Malik for Appellant.

Mian Shafaqat Jan for Respondent.

2021 Y L R 241

[Islamabad]

Before Mohsin Akhtar Kayani, J

The JURISTS FOUNDATION through Chairman---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Interior and 5 others---Respondents

Writ Petition No. 3879 of 2019, decided on 18th September, 2020.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Railway reforms---Petitioner was aggrieved of train accident resulting into deaths of 74 persons and 40 injured---Petitioner sought issuance of direction to the Prime Minister to take resignation from Minister for Railways and implement reforms in the department---Validity---Petitioner could not give valid justification for issuance of direction to the Prime Minister to take resignation from Federal Minister for Railways, except that it was moral obligation of the Minister to resign from such position in the wake of the incident, which occurred due to negligence of Pakistan Railways and its officials---Authorities had already taken cognizance of Railways Reforms and had taken measures with respect to tenders for 2000 fire extinguishers for all types of fires and created separate Directorate of safety in Headquarters Office under Chief Operating Superintendent / Safety with the role to hold periodical meeting on monthly basis and to conduct safety conferences at the Headquarters and Divisional levels on monthly/quarterly basis to discuss safety related issues---Constitutional petition was dismissed accordingly.

Riaz Hanif Rahi for Petitioner.

Rai Azhar Iqbal Kharral, Syed Mumtaz Mazhar Naqvi and Ms. Huma Noreen Hassan for Ministry of Railways for Respondent.

Raja Muhammad Aftab Ahmed, A.A.G. for Respondent.

Muhammad Saleem Khan, Joint Director, Ministry of Railways.

Sajjat Butt, D.G. Legal, Headquarters, Lahore.

Khalid Mehmood Khan, Deputy Secretary, Ministry of Interior.

2021 Y L R 328

[Islamabad]

Before Aamer Farooq, J

MUHAMMAD NAWAZ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 1027-B of 2020, decided on 21st October, 2020.

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

----S. 497---Penal Code (XLV of 1860), Ss. 406, 468, 471 & 109---Prevention of Electronic Crimes Act (XL of 2016), Ss. 14 & 16---Criminal breach of trust, forgery for purpose of cheating, using as genuine a forged document, abetment---Electronic fraud---Unauthorized use of identity information---Bail, grant of---Scope---Accused was alleged to have advertised a vehicle on an online marketplace which was purchased by complainant, however subsequently, its invoice was found to be fabricated and forged---None of the offences with which the accused was charged fell within prohibitory clause of S.497, Cr.P.C.---Investigating Officer had yet to determine whether the invoice was forged by the accused or the one from whom he had purchased the vehicle---Accused was not required for further investigation and case against him was one of further inquiry---Petition for grant of bail was allowed, in circumstances.

Salim Dad Khan v. Ghulam Muhammad and others 2011 YLR 540; Muhammad Ali v. The State 2008 PCr.LJ 1360; Tabbasam Ahmed Qureshi v. The State 2000 PCr.LJ 105 and Syed Maqsood Hussain Shah v. The State 2007 PCr.LJ 171 ref.

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

----S. 497---Bail---Scope---Where the offences do not fall within 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 and 5 others v. The State PLD 1995 SC 34 ref.

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

----S. 497---Bail---Pendency of FIR of similar nature---Effect---Scope---Mere pendency of FIR of similar nature against accused is not a ground for refusal of bail unless any one of them has culminated into conviction.

Qurban Ali v. The State and others 2017 SCMR 279 ref.

Arshad Hussain Yousafzai and Ms. Abida Mukhtar for Petitioner.

Ch. Adnan Qamar for Complainant.

Complainant in person.

2021 Y L R 370

[Islamabad]

Before Ghulam Azam Qambrani, J

MUHAMMAD SHAFIQ---Appellant

Versus

MUHAMMAD IJAZ ABBASI and another---Respondents

Criminal Appeal No. 18 of 2011, decided on 2nd September, 2020.

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

----S. 406---Criminal breach of trust---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Prosecution case was that the complainant purchased a plot from the accused vide agreement to sell, but the plot was not transferred in his favour---Complainant deposed that he met the accused in the office of an advocate, where the accused induced him to purchase his plot---Complainant entered into agreement to sell with the accused regarding plot, which was to be allotted to the accused for sale consideration amount of Rs.20,00,000/- and paid Rs.11,00,000/- as earnest money to the accused in presence of the witnesses---Complainant admitted that he had also filed a suit for specific performance of contract before the civil court---Complainant also admitted that he did not produce said advocate before the Investigation Officer in support of his version---Prosecution witness deposed that agreement to sell was executed between the complainant and the accused in his presence---Said witness further deposed that complainant paid an amount of Rs.11,00,000/- to the accused as earnest money and he was also the marginal witness of the said agreement to sell---Investigating Officer admitted that he had not interrogated the advocate because he did not join the investigation---Perusal of the record revealed that as a result of the agreement to sell, the complainant paid an amount of Rs.11,00,000/- to the accused as earnest money and it was not proved that it was an entrustment---With regard to the said agreement to sell the complainant had also filed a suit for specific performance before the civil court---Breach of any term of agreement to sell, in circumstances, did not fall within the criteria of criminal breach of trust as the agreement to sell had been created under the Contract Act, 1872, where one party signified his willingness to do anything against a consideration---Payment of earnest money did not fall within the preview of "entrustment" of property in terms of S.406, P.P.C.---Even otherwise, there was no misappropriation if the seller after receiving the sale consideration or part of sale consideration, refused to transfer the plot or failed to abide by the terms of agreement, as the said failure or breach of terms could not be equated with dishonest use, disposal of the property or violation of any legal contract---Any breach of such agreement had a remedy under Specific Relief Act, 1877, where one could seek a specific performance of a contract, if the same was enforceable by law---Court of law had to see which party was responsible for refusal or failure of performance of the terms of the contract---Trial Court did not acquit the accused on the sole ground of non-production of prosecution evidence but also on the ground that there seemed no breach of trust as alleged by complainant---Record showed that the matter seemingly did not fall within the concept of breach of trust as defined in S.405 of the P.P.C.---First Information Report being the result of alleged breach of terms of the agreement, the complainant had tried to settle the civil dispute through initiation of criminal proceedings, which abuse could not be allowed to perpetuate---In the present case, the complainant had already approached the civil court by filing a civil suit for recovery and compensation against accused---Agreement to sell when provided the remedy for breach of any term in the contract as of damages, all other remedies could be seen under the said clause---Criminal prosecution in the case was just an abuse of process, which was apparent on record---Circumstances established that ingredients of the offence under S.406, P.P.C. was not made out against the accused---Appeal, against acquittal was dismissed accordingly.

Muhammad Nawaz v. S.H.O Police Station, Sabzi Mandi, Islamabad, and others 2017 PCr.LJ 133; Badar Ur Islam v. District Police Officer, Faisalabad and 3 others 2007 YLR 2766; Umair Aslam v. Station House Officer and 7 others 2014 PCr.LJ 1305 and Rafiq Haji Usman v. Chairman, NAB and another 2015 SCMR 1575 rel.

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

----S. 406---Criminal breach of trust---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Delay of about four months in lodging the FIR---Effect---Prosecution case was that the complainant purchased a plot from the accused vide agreement to sell, but the same was not transferred in his favour---Record showed that there was an inordinate and unexplained delay of about four months in the lodging of the FIR, which made the prosecution case doubtful---Appeal against acquittal was dismissed accordingly.

(c) Appeal against acquittal---

----Interference---In case of acquittal, the interference would be warranted if the reasoning of the trial court in acquitting the accused was perverse, artificial or ridicules---In exceptional case, the court would interfere by setting aside the acquittal of an accused.

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

----S. 417---Appeal against acquittal---Presumption--- Double presumption of innocence is attached to the order of acquittal and interference is unwarranted unless the acquittal was perverse, completely illegal and on perusal of evidence, no other decision could be given except that the accused was guilty or there had been complete misreading of evidence leading to miscarriage of justice.

Inayatullah Butt v. Muhammad Javed and 2 others PLD 2003 SC 562 rel.

Muzammil Din Choudhry for Appellant.

Zahid Asif Chouhdry for Respondents.

Zohaib Hassan Gondal and Hamaad Saeed Dar, State Counsel along with Shahid- A.S.I. for the State.

2021 Y L R 416

[Islamabad]

Before Athar Minallah, C.J. and Ghulam Azam Qambrani, JJ

MUKHTAIR AHMED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 348 of 2019, decided on 30th July, 2020.

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

----S. 9(c)---Narcotic substance, recovery of---Appreciation of evidence---Sentence, reduction---Quantity of narcotics---Determination---Charas packed in 226 packets was recovered from secret cavities of vehicle in which accused was present---Each packet contained three (3) slabs of Charas and 10 grams of Charas was taken as sample from each packet---Slabs from which samples were taken had not been separately weighed and weight of each slab could not be determined with precision---If sample from each slab could have been taken, the matter would have been different---If each slab from which sample was taken was weighed and their weight was more than 10 kilograms, there would have been no reason to alter sentence awarded by Trial Court---High Court disapproved the mode adopted by Trial Court for determining weight of each of the 226 packets from which samples were taken---High Court converted sentence of imprisonment for life into one already served by accused as quantity of Charas recovered from the possession of accused did not exceed 10 kilograms---Appeal was dismissed accordingly.

Ameer Zeb v. The State PLD 2012 SC 380 and Taeb Hussain v. The State (Criminal Appeal No.63 of 2013). rel.

Ajmal Khan Khattak for Appellant.

Zohaib Hassan Gondal, State Counsel with Tipu Sultan Ranjha, S.I.

2021 Y L R 631

[Islamabad]

Before Fiaz Ahmad Anjum Jandran, J

NAJEEB MEHMOOD---Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman, C.D.A.---Respondent

Civil Revision No. 191 of 2017, decided on 18th November, 2020.

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

----O. IX, Rr. 3 & 4---Dismissal of suit for non-prosecution---Suit, not fixed for hearing---Effect---Petitioner impugned the concurrent dismissal of his application for restoration of suit which was dismissed for non-prosecution---Validity---Suit was at the stage of arguments/decision upon application for temporary injunction when it was dismissed for non-prosecution which, as a matter of course, could not have been dismissed being beyond the mandate of the proceedings fixed for that particular date i.e. decision upon application for temporary injunction---Impugned order amounted to a surprise order because as per law when an application was fixed then any other order except an order upon said application amounted to a surprise order, which was not warranted by the law---High Court while adverting to the ground qua delay in filing of application for restoration observed that such type of order was without jurisdiction and void, therefore, question of limitation did not arise---Revision petition was allowed.

National Bank of Pakistan v. Haji Muhammad Shafique and another 2005 MLD 1483, 2015 CLC 316 and PLD 2008 Kar. 103 ref.

Qazi Muhammad Tariq v. Hasin Jahan and 3 others 1993 SCMR 1949; 2012 SCMR 656 and Altaf Hussain Qamar and 2 others v. Imran Rasool and 5 others 2011 CLC 1891 rel.

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

----O. IX, Rr. 3 & 4---Dismissal of suit for non-prosecution---Scope---Parties were mindful that on the next date, the court would proceed with the matter as per order announced on previous date and it was difficult to contend that the order regarding a business could be passed, which was not fixed before the Court.

(c) Administration of justice---

----When a thing is required to be done in a particular manner, it should be done in that particular manner alone and not otherwise.

Manzoor Hussain for Petitioner.

Malik Javid Iqbal Wains for Respondent.

2021 Y L R 728

[Islamabad]

Before Lubna Saleem Pervez, J

KHALID NADEEM KIYANI---Petitioner

Versus

I.G. POLICE, ISLAMABAD and others---Respondents

Writ Petition No. 2667-Q of 2020, decided on 2nd November, 2020.

Telegraph Act (XIII of 1885)---

----S. 25-D---Criminal Procedure Code (V of 1898), Ss. 561-A & 249-A---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of FIR---Penalty for causing annoyance---Alternate remedy, availability of---Effect---Accused sought quashing of FIR registered against him wherein it was alleged that he had threatened the complainant through a message and an audio recording---Investigation in the matter had not completed and real facts could only be ascertained once the investigation was complete and challan was submitted under S.173, Cr.P.C. before the concerned Trial Court---Powers under Art. 199 of the Constitution could not be substituted for the trial nor could any deviation be made from the normal course of law---Alternate remedy under S.249-A, Cr.P.C., was available to the accused before the Magistrate, who had ample power to acquit the accused on the basis of report of Investigating Officer---Constitutional petition was dismissed, in circumstances.

Raja Muhammad Nadeem v. The State and another PLD 2020 SC 282 and Muhammad Ali v. Additional I.G. Faisalabad and others PLD 2014 SC 753 ref.

Director General Anti Corruption v. Muhammad Akram PLD 2013 SC 401; Muhammad Shoaib v. S.H.O. Police Station New Multan and another 2005 PCr.LJ 1681 and Sajid Javed v. SHO Police Station Sabzi Mandi 2016 PCr.LJ 693 rel.

Imran Feroz Malik for Petitioner.

Ajmal Raza Bhatti for the Complainant.

Ms. Abida Mukhtar Chaudhry, State Counse and Sohaib, S.I. for Respondents.

2021 Y L R 1072

[Islamabad]

Before Mohsin Akhtar Kayani and Fiaz Ahmad Anjum Jandran, JJ

RASHID MINHAS---Appellant

Versus

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

Criminal Appeal No. 196 of 2018, Writ Petition No. 1065 of 2020 and Criminal Appeal No.141 of 2018, decided on 13th October, 2020.

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

----S. 9 (a) (ix)---Qanun-e-Shahadat (10 of 1984), Arts. 33, 34, 113 &131---Criminal Procedure Code (V of 1898), S.340 (2)---Cheating members of public at large---Appreciation of evidence---Admitted facts---Defence evidence---Plea of accused---Accused was convicted by Trial Court for cheating members of public at large and was sentenced to fourteen years of imprisonment along with fine---Accused sought reduction in sentence on the plea that he was just an employee of the companies alleged to have cheated members of public at large---Validity---Admitted facts were not to be proved independently---Statement of accused recorded under S.340(2), Cr.P.C. qualified test of admissibility regarding contents of documents in terms of Art. 35 of Qanun-e-Shahadat, 1984---Admissibility of evidence was established on record and all allegations were proved against accused as he could not prove his stance of being just an employee of the companies---High Court maintained conviction and sentence awarded to accused by Trial Court as charge under S.9(a)(ix) of National Accountability Ordinance, 1999, was established and proved in trial---Appeal was dismissed, in circumstances.

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

----S. 10---Sentence, reduction in---Principle---Where allegations are relating to corruption and corrupt practices, question of reduction in sentence is considered on the basis of amount misappropriated or the mode and manner in which people have been cheated or deprived of their hard earned money or where public ex-chequer has been robbed---Such are key factors to be considered.

Allah Rakha v. The State 2020 SCMR 1063; Mukhtar Alam v. Fazal Nawab 2020 SCMR 618; Bakht Munir v. The State 2020 SCMR 588; Manzoor Ahmad Akhtar v. The State 2020 MLD 233 and Shahid Hussain v. The State 2020 PCr.LJ Note 52 rel.

(c) Criminal trial---

----Sentence---Reduction in by appellate Court---Factors stated:

While considering the guiding principles deduced from different enunciations of superior Courts as well as from Islamic jurisprudence, it is the duty of High Court to highlight all those principles to consider the concept of reduction in sentence, whereby the factors are as under:

a) If the period already served by the accused behind bars is more than three-fourths (75%) of the total sentence awarded, then a lenient view has to be taken by the appellate Court in appeal subject to other factors referred.

b) If majority of the complainants/ affectees have failed to prove their cases, the sentence so awarded to the accused has to be reduced.

c) If the accused had paid back major portion of embezzled amount to the affectees, maximum sentence could not be awarded and sentence shall be reduced.

d) The mode and manner in which the crime was committed, if same was on the basis of impersonation, cheating and fraud with general public depriving them of their hard earned money, the sentence shall not be reduced.

e) If there are number of accused persons involved in depriving the general public of their hard earned money, then the liability has to be considered against each of them. In such eventuality, the sentence may be reduced while considering the role of each accused in juxtaposition with other co-accused persons.

f) The fine or confiscation of the property so imposed by the trial Court as a sentence in case of corruption shall not be reduced in any manner.

g) If the convict is of advanced age, sick or woman, sentence may be reduced subject to other factors discussed above.

High Court has to apply the principle of culpae poenae par esto i.e. "let the punishment be equal to the crime". The sentences must be propor-tionate to the gravity of the offence and the degree of responsibility of the offender. Court is also bound by the divine authority of Quranic injunctions referred in Surah Al-Bakarah, Yunus, Al-Haj, Ash-Shura and An-Nahl, whereby it has been settled that punishment must be commensurate with the offence and not more.

Faqeer Muhammad v. The State 2016 PCr.LJ 1854; Amjad Ali v. The State 2017 YLR 594; Muhammad Ashraf v. The State 2006 PCr.LJ 431; Muhammad Rafique v. The State 1995 SCMR 1525; Zahid Imran v. The State 2006 SCMR 109; Haji Muhammad Iqbal v. The State 2016 MLD 1931; Sarwat v. The State 2017 YLR 524; Shah Wali v. The State PLD 1993 SC 32; Sohrab Khan Marri Khuda Bakhsh v. The State 2017 SCMR 669; Tariq Saeed v. The State 2020 SCMR 1177 and Supreme Court of Canada - Her Majesty the Queen v. Justyn Kayle Napoleon Friesen 2020 SCMR 765 rel.

(d) Maxim---

----Culpae poenae par esto---Connotation---Let the punishment be equal to the crime---Sentence must be proportionate to gravity of offence and degree of responsibility of offender.

Muhammad Afzal Janjua for Appellant (in Criminal Appeal No.196 of 2018).

Nasir Mehmood Mughal, Special Prosecutor, NAB for Respondents (in Criminal Appeal No.196 of 2018).

Muhammad Afzal Janjua for Petitioner (in Writ Petition No.1065 of 2020).

Nasir Mehmood Mughal, Special Prosecutor, NAB for Respondents (in Writ Petition No.1065 of 2020).

Nasir Mehmood Mughal, Special Prosecutor, NAB for Appellant (in Criminal Appeal No. 141 of 2018).

Zahid Asif Ch. and Muhammad Bilal for Respondent No.1 (in Criminal Appeal No. 141 of 2018).

2021 Y L R 1173

[Islamabad]

Before Mohsin Akhtar Kayani and Fiaz Ahmad Anjum Jandran, JJ

MUHAMMAD RAMEEZ and 2 others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 91 and Criminal Revision No. 28 of 2015, decided on 28th September, 2020.

Penal Code (XLV of 1860)---

----Ss. 302 (b), 324 & 337-F(ii)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to Qatl-i-amd and Ghayr-Jaifah Badi'ah---Appreciation of evidence--- Withholding of evidence---Presumption--- Delay in dispatching crime empties and recovered weapon---On the day of occurrence nine fire-arm empties along with one bullet head were recovered from the spot but were not sent to Forensic Science Laboratory until recovery of weapons of offence---Crime empties along with bullet head despite having been taken into possession on the day of occurrence were kept in Malkhana and sent to Forensic Science Laboratory after recovery of weapons---Weapons were also sent to Forensic Science Laboratory with a delay of more than one month---Result of Forensic Science Laboratory though confirmed use of recovered pistols and matched with fire-arm empties but the same had no evidentiary value and was inconsequential---Accused persons were linked with commission of offence and evidence produced by accused persons had no legs to stand which was discarded for having no material evidence rather it was an afterthought---Injured witness was not produced by accused persons and was given up, such aspect led the Court towards conclusion in terms of Art.129(g) of Qanun-e-Shahadat, 1984---Accused persons had intentionally given up the injured witness who if had produced could have gone against defence version---High Court declined to interfere in conviction and sentence awarded to accused persons as the Trial Court had already taken a lenient view while awarding imprisonment for life instead of death sentence---Appeal was dismissed, in circumstances.

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

Raja Ghaneem Aabir Khan and Muhammad Ilyas Khan for Appellants (in Criminal Appeal No.91 of 2015).

Raja Rizwan Abbasi for Respondent No.2 (Complainant) (in Criminal Appeal No.91 of 2015).

Zohaib Hassan Gondal, State Counsel (in Criminal Appeal No.91 of 2015).

Muhammad Anar, Inspector/I.O., P.S. Nilore, Islamabad.

Ishaq Khan, S.I., P.S. Nilore, Islamabad.

Raja Rizwan Abbasi for Appellants (in Criminal Revision No.28 of 2015).

Raja Ghaneem Aabir Khan and Muhammad Ilyas Khan for Respondents Nos. 1 to 3 (in Criminal Revision No.28 of 2015).

Zohaib Hassan Gondal, State Counsel (in Criminal Revision No.28 of 2015).

Muhammad Anar, Inspector/I.O., P.S. Nilore, Islamabad.

Ishaq Khan, S.I., P.S. Nilore, Islamabad.

2021 Y L R 1342

[Islamabad]

Before Fiaz Ahmad Anjum Jandran, J

MUHAMMAD SHAWAIZ ABBASI and another---Petitioners

Versus

The STATE and another---Respondents Criminal Miscellaneous No. 1134-B of 2020, decided on 22nd February, 2021.

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

----S. 498---Pre-arrest bail---Object---Remedy of extra-ordinary concession of pre-arrest bail is meant to save innocent from false implication, rigors of trial and humiliation.

Gulshan Ali Solangi and others v. The State through P.G. Sindh 2020 SCMR 249 rel.

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

----S. 498---Penal Code (XLV of 1860), Ss. 337-A(i), 337-A(ii), 337-A(iii), 337-F, 148 & 149---Shajjah-i-khafifah, shajjah-i-mudihah, shajjah-i-hashimah, jurah ghayr-jaifah, rioting armed with deadly weapon, unlawful assembly---Pre-arrest bail refusal of---Allegations set-forth against the petitioners were that they along with co-accused launched an attack upon the complainant party and inflicted blows with iron-rod and also inflicted cudgel blows on the bodies of two persons---Record showed that role assigned to petitioner was of causing iron-rod injuries on the head and arm of an injured person---Injured was examined on the same day, while Medico-Legal Report confirmed that the injuries had been inflicted with blunt weapon which resulted into bone exposed---Injuries attributed to said petitioner fell under S.337-A(iii), P.P.C., punishable with Arsh, 10% of Diyat and imprisonment which may be extended up to ten years---Co-petitioner was also assigned identical role as he allegedly caused cudgel injuries on the person of injured---Said injured was examined on the same day while Medico-Legal Report confirmed that the injuries had been inflicted with blunt weapon exposing underlying bone---One of the injuries fell under S.337-A(ii), P.P.C., punishable with Arsh, 5% of Diyat and imprisonment which may be extended up to five years---Both the petitioners were specifically nominated with role of causing blunt weapon injuries on the persons of injured---Medico-Legal Reports corroborated the version of the complainant with further corroboration qua kind of weapon---Crime weapon including iron rod and cudgel through which severe injuries were caused were yet to be recovered for which their arrest as per peculiar circumstances was necessary---Allegation qua the petitioners, corroborated with independent medical evidence, were to be tentatively assessed---Petitioners had taken law in their hands---Case was not where only diyat, arsh was payable alone, side-by-side imprisonment even up to ten years was provided which was included in the limb of S. 497 of the Cr.P.C.---Circumstances warranted to refrain from extending the benefit of extraordinary relief---Petition was dismissed and ad-interim bail granted to the petitioners was recalled, in circumstances.

2010 SCMR 1219; 2012 PCr.LJ 1560; 2007 MLD 880; 2006 YLR 1591; 2007 MLD 1067; 2017 YLR 991; 2020 SCMR 313; 2020 SCMR 249; PLD 2020 SC 293; 2016 SCMR 2064; 2015 SCMR 1394; 2009 SCMR 725; 2017 PCr.LJ 71; 2011 PCr.LJ 601 and 1999 MLD 1203 ref.

Kamran Ataullah and another v. The State Criminal Petition No.149-K of 2020 rel.

Mazhar Akram Awan and Mirza Irfan Ghazanfar for Petitioners with Petitioners on ad interim bail.

2021 Y L R 1381

[Islamabad]

Before Ghulam Azam Qambrani, J

SIKANDAR ALI alias BHOLA---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 50, Jail Appeal No.179 of 2016 and Criminal Revision No. 53 of 2015, decided on 30th November, 2020.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention--- Appreciation of evidence---Natural witness---Scope---Accused was charged that he and co-accused/mother of the complainant committed murder of complainant's father--- Statement of complainant showed that the accused was having illicit relations with her mother, the co-accused---Complainant was the real daughter of the deceased and of the co-accused and it was unimaginable that a daughter could level such type of heinous allegations against her mother---Statement of complainant, in circumstances, could not be said to be inimical or based upon mala fide---Statements of all the prosecution witnesses stood truthful---Evidence available on record established that the accused was present inside the house of the deceased---Naval Complex Police handed over copy of CNIC of the accused to the Investigating Officer, which further confirmed the fact that the accused gave information to the Naval Complex Police for going to the house of the deceased, otherwise, the Naval Police had no ill-will with the accused to produce such evidence---Recovery of pillow, which was used by the co-accused to place it on the mouth of the deceased during her police custody strengthened the prosecution case, however, the defence had failed to rebut the evidence produced by the prosecution, even the accused failed to produce any evidence in his defence---Facts and circumstances and evidence produced by the prosecution, had established that the prosecution succeeded to link the incident with the accused---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay in recording the FIR and statement of the complainant---Effect---Accused was charged that he and co-accused/ mother of the complainant committed murder of complainant's father---Record showed that initially an independent person having no relation with any of the party, on the direction of his officers, reported the matter to the police, which was reduced into rapt---After conducting of post-mortem report and confirmation that the death of the deceased was unnatural, FIR was registered against unknown persons---Delay in recording of the FIR and delay in recording statement of complainant had been reasonably explained by the prosecution as complainant, when came back from their native village/place after burying the deceased there, got recorded her statement under S.161, Cr.P.C. and explained the real facts---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention--- Appreciation of evidence---Motive was proved---Scope---Accused was charged that he and co-accused/mother of the complainant committed murder of complainant's father---Motive behind the occurrence was stated to be the illicit relations of accused with the wife of the deceased---Motive for the occurrence was that the accused was abused and expelled from the house by the deceased---Wife of the deceased was also threatened by the deceased that if she again contacted the accused, the deceased would pronounce divorce to her---Said fact was proved from the statement of complainant---Appeal against conviction was dismissed, in circumstances.

(d) Criminal trial---

----Circumstantial evidence--- Scope---Capital punishment could be awarded on the basis of circumstantial evidence subject to the condition that it connected the accused persons with the commission of the offence and it appealed to logic and reasons, then it was sufficient piece of evidence to connect the accused with the commission of offence---Circumstantial evidence was one of the mode to find out the guilt of the accused person.

(e) Criminal trial---

----Circumstantial evidence---Scope---Different pieces of evidence had to make one chain, where one end of it touched the dead body and the other to the neck of the convict---In case of any missing link in the chain, the whole chain would be broken and no conviction could be recorded in crimes entailing capital punishment.

Nasir Javaid and another v. The State 2016 SCMR 1144; Sh. Muhammad Amjad v. The State PLD 2003 SC 704; Hamid Mahmood and another v. The State 2013 SCMR 1314; Talib Hussain v. The State 1995 SCMR 1538; Muhammad Latif v. The State PLD 2008 SC 503; Akbar Ali v. The State 2007 SCMR 486; Khurshid v. The State PLD 1996 SC 305 and Khuda Bukhsh v. The State 2004 SCMR 331 rel.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account supported by medical evidence---Scope---Accused was charged that he and co-accused/mother of the complainant committed murder of complainant's father---No material contradictions were found in the statements of the prosecution witnesses---Examination of the evidence produced by the prosecution, showed that the witnesses had fully supported the prosecution case and the medical evidence had confirmed that the death of the deceased was not natural---Witnesses remained unbiased, consistent in material aspects of the case, they were reliable and nothing favourable could be extracted during the cross-examination in favour of the defence---Defence had failed to point out any illegality, irregularity, misreading, non-reading or any infirmity or defect in the impugned judgment passed by the Trial Court, calling for interference by that Court---Appeal against conviction was dismissed, in circumstances.

Asif Masood for Appellant.

Naseer Anjum Awan for the Complainant.

Hammad Saeed Dar, State Counsel along with Shah Nazar, Sub-Inspector for the State.

2021 Y L R 1436

[Islamabad]

Before Fiaz Ahmad Anjum Jandran, J

TOTAL PARCO PAKISTAN LIMITED through Authorised Officer---Petitioner

Versus

JUSTICE OF PEACE/ADDITIONAL SESSIONS JUDGE (WEST), ISLAMABAD and 2 others---Respondents

Writ Petition No. 3048 of 2020, decided on 11th January 2021.

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

----Ss. 22-A, 22-B & 179---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Powers of Ex-officio Justice of Peace---Accused triable in the district where act is done or where consequence ensues---Scope---Petitioner lodged a complaint with the allegation that in order to settle the outstanding amount as price of lubricants purchased, the respondent issued a cheque which was dishonoured for want of funds---Local police refused to register FIR on the ground that the subject cheque was never sent to the Bank in ICT rather the same was produced in district 'L' during clearing process and since upon checking the online status of Bank account sufficient amount was not available, the same got dishonoured accordingly---Ex-officio Justice of Peace dismissed the application on the similar ground---Validity---Main thing to be looked into was not whether the cheque was transmitted to ICT or not but was, whether the account of the drawer was being maintained at ICT or not and the subject cheque was of that account or not---Additional option was given to the payee that he could register the case where his/her account existed---Complainant could initiate criminal proceedings at any of the two places i.e. where the cheque was deposited for encashment or where it was dishonoured---Constitutional petition was allowed, impugned order was set aside and the application under Ss.22-A & 22-B, Cr.P.C. was allowed.

2017 YLR 1548 and 2018 PCr.LJ 392 ref.

Faqir Khan v. Bakhtawar Jan and 4 others 2019 PCr.LJ 1558 fol.

Mazhar Hussain v The State and 2 others PLD 2010 Lah. 60 rel.

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

----Ss. 22-A & 22-B---Powers of Ex-officio Justice of Peace---Scope---Ex-officio Justice of Peace is not bound to requisition the report from the concerned authority but when it has been requisitioned then due weight is required to be given to it, at the same time, the Justice of Peace is not expected to avoid its duty to respond to the question of law, if involved in the matter, as required by law.

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

----Ss. 22-A & 22-B---Powers of Ex-officio Justice of Peace---Quasi-judicial powers---Scope---Powers exercised by Ex-officio Justice of Peace are quasi judicial where due application of mind is held to be sine qua non---Exercise lend authority to the Ex-officio Justice of Peace to pass appropriate directions and every lis demands discretion and judgment.

Younas Abbas and others v. Additional Sessions Judge Chakwal and others PLD 2016 SC 581 rel.

Mian Imran Masood for Petitioner.

Syed Ishaq Shah, State Counsel.

Ch. Muhammad Ayub Arbab Gujjar for Respondent No.2.

2021 Y L R 1458

[Islamabad]

Before Lubna Saleem Pervez, J

MUHAMMAD KHAWER HASAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, ISLAMABAD (WEST) and others---Respondent

Writ Petition No. 3180 of 2019, decided on 13th January, 2021.

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

----S. 25--- Custody of minor---Compromise decree--- Fixation of maintenance allowance--- Scope---Petitioner assailed decree passed by Judge Family Court on the basis of compromise between the parties to the extent of maintenance fixed at the rate of Rs. 50,000/- per month with 15% annual increase---Contention of petitioner was that compromise was not signed by him and that the amount of maintenance was exorbitant---Validity---Compromise once arrived at with due deliberation and consultation was not legally challengable--- Challenging the compromise partially to the extent of maintenance allowance after its submission before the court of law had no moral and legal justification---Petitioner had signed vakalatnama in favour of his counsel and on the basis of said vakalatnama his counsel had appeared as a representative/ attorney of the petitioner---Consent decree was not appealable---Appeal filed by the petitioner agitating consent decree was validly dismissed by the Appellate Court---Petitioner, in view of his admission in the guardian petition, could easily afford maintenance of Rs.50,000/- per month to support his minor daughter---Constitutional petition was dismissed.

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

----O. III, R. 4---Appointment of pleader--- Scope--- Vakalatnama is a document which legally authorizes the lawyer/counsel to act on behalf of his/her client---Once the advocate is engaged through duly signed vakalatnama by the client for a case then all acts of the counsel in connection with such case are considered to be authorizedly taken on behalf of his client till such time the vakalatnama is revoked or withdrawn by the client in terms of the procedure prescribed under the law.

Hassan Akhtar and others v. Azhar Hameed and others PLD 2010 SC 657 rel.

Syeda Azra Bibi for Petitioner.

Respondent No.3 in person.

2021 Y L R 1641

[Islamabad]

Before Mohsin Akhtar Kayani and Lubna Saleem Pervez, JJ

Ch. AAMIR SHAHZAD---Appellant

Versus

MUHAMMAD MAKKI and 5 others---Respondents

Criminal Appeal No.8 of 2011, decided on 7th July, 2020.

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

----Ss.417(2) & 561-A---Anti-Terrorism Act (XXVII of 1997), 25 (4-B)---Appeal against acquittal---Maintainability---Special leave to appeal, non-seeking of---Conversion of proceedings---Inherent powers of High Court---Maxim actus curiae neminem gravabit---Applicability---Mistake of advocate---Act of Court---Complainant-appellant instead of seeking special leave to appeal against acquittal of all accused persons, preferred direct appeal, which was admitted by High Court for regular hearing and accused persons were summoned---Validity---Complainant-appellant could be rescued under S.561-A, Cr.P.C., in order to meet ends of justice---Complainant-appellant could not be burdened due to mistake of his counsel as well as office of High Court, who did not consider law in true perspective at initial stage---Appeal was filed within time but no special leave to appeal was obtained nor any such order was passed---No bar existed to consider such appeal as an application for special appeal and allow the same while giving effect from date of admission---High Court could not sit as silent spectator and watch that who committed the mistake---Every Court inherited powers to ensure justice was done and if foul play was visible, Judge had to rectify the same---High Court committed a mistake while entertaining the appeal directly at its initial stage and the same could not be considered against complainant-appellant who also did not apply law in a proper manner---High Court invoking inherent powers in terms of S.561-A, Cr.P.C. and relying upon principle actus curiae neminem gravabit, that no one should be prejudiced by the act of Court, condoned application for special leave---Objection was set aside in circumstances.

Muhammad Akram v. DCO Rahim Yar Khan 2017 SCMR 56; Mian Asghar Ali v. Government of Punjab through Secretary 2017 SCMR 118; Sher Alam Khan v. Abdul Munim PLD 2018 SC 449; Mst. Gul Jan v. Naik Muhammad PLD 2012 SC 421; Commissioner of Income Tax (Legal) RTO v. ED-Zublin AG Germany 2020 SCMR 500; Abdur Rahim v. The State 1981 SCMR 294; Muhammad Ijaz v. Muhammad Shafi 2016 SCMR 834; Lanvin Traders, Karachi v. Presiding Officer 2013 SCMR 1419 and Khushi Muhammad v. Mst. Fazal Bibi PLD 2016 SC 872 rel.

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

----S. 365-A---Kidnapping for ransom---Necessary ingredients---Necessary to prove that extortion has been made from any person who has been kidnapped or abducted---At least some person has to comply with the demand whether in cash or otherwise in order to obtain release of abductee.

Muhammad Riaz v. Bilqiaz Khan 2012 SCMR 721 rel.

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

----S.7---Penal Code (XLV of 1860), S.365-A---Qanun-e-Shahadat (10 of 1984), Arts. 40 & 122---Kidnapping for ransom--- Appreciation of evidence---Appeal against acquittal---Disclosure by accused---Newspaper cuttings---Trial proceeded in private complaint filed by complainant-appellant, in which all accused persons were acquitted of the charge---Validity---Exclusive knowledge of accused regarding place of captivity of abductee fell within the concept of Art. 122 of Qanun-e-Shahadat, 1984, as on his pointation abductee was recovered from a residential flat---Such aspect was confirmed during trial by police officials who appeared as Court witnesses---Exclusivity of knowledge of accused regarding different aspects of occurrence was a piece of evidence inexorably pointing upon his culpability---Information supplied under Art. 40 of Qanun-e-Shahadat 1984, by accused in police custody was admissible only to the extent of that it related to disclosure of a new fact---Newspaper cutting in criminal case could not be used either in favour of prosecution or in favour of defence unless author of the same was examined in Court as witness---Such was a blatant illegality by Trial Court which resulted into judgment of acquittal of accused persons---High Court converted acquittal of accused persons into conviction and sentenced them to imprisonment for seven years---Appeal against acquittal was allowed, in circumstances.

Hayat Bakhsh v. The State PLD 1981 SC 265; M. Saleem Akhtar v. S.H.O. Police Station Chotiana 2005 PCr.LJ 1789; Asif Ali v. The State PLD 1971 SC 223; Hafiz and another v. The State PLD 1961 Dhakka 78; Muhammad and others v. The State PLD 1961 Kar. 709; Muhammad Anwar alias Lalu v. The State 2003 YLR 300 and Zeeshan v. State 2017 YLR 278 ref.

Waqar A. Shamsi v. The State 2019 SCMR 2039; Sher Dil v. The State 2003 YLR 110; Muhammad Azad v. The State 2019 SCMR 1330; Muhammad Ashraf Tareen v. The State and others 1996 SCMR 1747; Shah Sim Khan v. The State 2017 PCr.LJ 505; Shahbaz Khan alias Tippu v. Special Judge Anti Terrorism Court 3 Lahore PLD 2016 SC 1; Ghulam Hussain v. The State PLD 2020 SC 61; Shahid alias Kaloo v. The State 2009 SCMR 558; Ansar Ali v. State 2017 MLD 1981 and Khadija Siddiqui v. Shah Hussain PLD 2019 SC 261 rel.

Muhtarma Benazir Bhutto v. Farooq Ahmad Khan Leghari and others PLD 1998 SC 388; Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57; Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 and Umair Ashraf v. The State 2008 MLD 1442 distinguished.

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

----Chap. XXXI---Anti-Terrorism Act (XXVII of 1997), S.25---Qanun-e-Shahadat (10 of 1984), Arts.117 to 122---Burden to prove---Appellate Court, duty of---If defence version fails, even then prosecution has to stand on its own legs---Duty of High Court to thrash out each and every aspect while considering principle of law in terms of Arts. 117 to 122 of Qanun-e-Shahadat, 1984, in matter of appeal.

Mudassar Hussain Malik for Appellant.

Ch. Gulfam Ashraf Goraya for Respondents Nos.1 to 5.

Muhammad Atif Khokhar, State Counsel.

2021 Y L R 1676

[Islamabad]

Before Fiaz Ahmad Anjum Jandran, J

MUHAMMAD YASIR---Petitioner

Versus

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

Writ Petition No. 1343 of 2021, decided on 9th April, 2021.

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

----Ss. 5, Sched. & 14---Suit for recovery of maintenance allowance, gold ornaments and dowry articles by wife---Delay in assailing judgment/decree---Laches---Conduct of the defendant/ judgment-debtor---Appeal of husband before Appellate Court against the decree in favour of his wife was dismissed for being time-barred---Petitioner/husband also invoked constitutional jurisdiction of the High Court against the judgment-in-appeal after a delay of more than two years and two months---Petitioner contended that he could not file appeal in time before Appellate Court due to his sickness; and that he had been behind the bars for two months rendering him unable to assail judgment-in-appeal---Held, that there was no explanation of the long standing period of one year even if the period of two month of his incarceration was excluded---Similar to the ground of sickness taken during the appeal, the ground being pressed by the petitioner for condonation the delay/ laches in filing present constitutional petition was also without any substance---Delay in approaching the forum (Appellate Court) gave/created valuable rights in favour of other party and even approaching High Court with an inordinate delay of 14/15 months attracted the maxim 'delay defeats equity'---Conduct of the petitioner could not be termed as aboveboard, instead it appeared to be negligent; and equitable relief could not be granted in extra-ordinary jurisdiction of High Court---Petitioner failed to make out a case for exercise of Constitutional jurisdiction in terms of Art. 199 of the Constitution---Constitutional petition was dismissed in limine, in circumstances .

Muhammad Arif v. Uzma Afzal and others 2011 SCMR 374 ref.

(b) Family Courts Act (XXXV of 1964)---

----Ss.5, Sched. & 14---Constitution of Pakistan, Art. 199---Suit for recovery of maintenance allowance, gold ornaments and dowry articles by wife---Equitable and discretionary relief---Limitation---"Sufficient" cause---Held, that the petitioner-husband had invoked constitutional jurisdiction of High Court with a delay of more than one year and two month while he intended to have discretionary and equitable relief without probing mala fide, illegality or material irregularity in the judgment passed by the Family Court---Law favoured the vigilant and not the indolent---Though law leaned adjudication of cases on merits, instead of technicalities, yet each and every decision on point of limitation could not be set at naught on any flimsy ground without reasonable, justifiable and convincing cause which could be assessed and termed as "sufficient"---Constitutional petition was dismissed.

(c) Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched. & 14---Constitution of Pakistan, Art. 199---Suit for recovery of maintenance allowance, gold ornaments and dowry articles by wife---Constitutional jurisdiction of High Court---Scope---Appeal of husband before Appellate Court against the decree in favour of his wife was dismissed as being time-barred and he even invoked constitutional jurisdiction of the High Court against the judgment-in-appeal after a delay of more than two years and two months---Held, that the petitioner/ judgment-debtor had already availed statutory remedy of appeal before the Appellate Court---Recourse in terms of Art. 199 of the Constitution to question the decisions of the two courts of competent jurisdiction, in absence of any illegality or jurisdictional defect would not be appropriate, particularly when conduct of the petitioner appeared to be lethargic throughout---Constitutional petition was dismissed.

(d) Equity---

----Delay in availing remedy---Equity aids the vigilant and not the indolent---Person who knocked the door of an equity Court with an inordinate delay, had to justify such delay.

(e) Family Courts Act (XXXV of 1964)---

----Preamble---Constitution of Pakistan, Art. 199---Invoking constitutional jurisdiction of High Court---Limitation---No statutory provision prescribing limitation for filing of constitutional petition existed, however, it did not mean to sleep upon a right for unlimited time and to agitate the judgment/decree when the other party resorted his/her right, particularly in family matters where the Legislative intent was unambiguous regarding deciding summarily.

2021 Y L R 1753

[Islamabad]

Before Lubna Saleem Pervez, J

SADIA ARIF---Petitioner

Versus

ADNAN SHAHID and 2 others---Respondents

Writ Petition No. 350 of 2020, decided on 22nd March, 2021.

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

----S. 5, Sched.---Suit for dissolution of marriage by way of Khula---Withdrawal of such suit after dissolution of marriage--- Scope--- Petitioner (wife) filed suit for dissolution of marriage, recovery of dower, dowry articles, gold ornaments, future and past maintenance---Family Court decreed the suit to the extent of granting khula subject to relinquishment of dower---Petitioner filed appeal with the contention, inter alia, that the respondent (husband) had divorced her through talaq-e-salasa after passing of decree by the Family Court, therefore, her suit to the extent of khula may be allowed to be withdrawn---Appellate Court turned down the request for the reason that marriage between the parties had been dissolved by the Family Court on the basis of khula, therefore, subsequent pronouncement of divorce through divorce deed had no legal effect--- Validity--- Dissolution of marriage through khula was neither revocable nor appealable---Appellate Court had rightly declined the request being not legally possible---Constitutional petition was dismissed.

Shah Hussain v. Mst. Nadia Khan and others 2018 YLR 2663 and Bibi Feroza and others v. Abdul Hadi and another 2014 CLC 60 ref.

(b) Islamic law---

----Islamic Law provides for dissolution of marriage by way of act of parties i.e. husband and wife themselves or by a decree of the court of law---When the parties or anyone of them arrive at the decision that they cannot continue to live together within the limits prescribed by Allah then they may proceed to dissolve the contract of marriage---Husband has been granted the right to give talaq/ divorce to his wife on his own initiative, by following the principles according to the Muslim Family Laws legislated on the basis of Quran and Sunnah and by paying the benefits and the amount of dower/mehar fixed as per nikahnama at the time of Nikah---Islamic Law also grants right to the wife to end the bond of marriage by way of "Khula" through court of law---Such right is not dependent on the consent of husband---When wife comes to the conclusion that it is not possible for her to live with her husband and observe religious obligation of marriage within the bounds prescribed by sharia then she is permitted to invoke her right and seek dissolution of marriage through court of law by filing suit for decree of Khula---In such event the wife is required to return the benefits as well as the mehar/dower received in lieu of Nikah to the husband.

Syed Muhammad Ali v. Mussarat Jabeen 2003 MLD 1077; Bibi Anwar Khatoon v. Gulab Shah PLD 1988 Kar. 602; Bibi Feroza v. Abdul Hadi 2014 CLC 60 and Mst. Shagufta Jabeen v. Javed Iqbal 1988 MLD 1207 ref.

Mian Muhammad Zafar Iqbal for Petitioner.

Ejaz Ahmed for Respondents.

2021 Y L R 1852

[Islamabad]

Before Lubna Saleem Pervez, J

NAUSHAAD HUSSAIN SHAH and 2 others---Petitioners

Versus

IESCO through Chairman IESCO and 11 others---Respondents

Civil Revision No. 139 of 2020, decided on 16th December, 2020.

(a) Pakistan Water and Power Development Authority Act (XXXI of 1958)---

----S. 14---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---Interim injunction, grant of---Scope---Public good---Installation of electricity poles/wires by the Water and Power Development Authority (WAPDA)---Plaintiff/petitioner contended that respondents (WAPDA) had no right to install and pass electricity poles (transmission lines)over their land; that due to high transmission electricity lines, the lives of the residents were exposed to immense danger---Respondents (WAPDA) contended that they were only replacing already installed poles/lines with new and innovative form of electricity poles and no risk would be caused to the owners of land due to updated technology---Held that the suit-land was barren and since the year 1984, the electricity poles already existed at the place which the respondent was replacing with new poles---Petitioners had, admittedly, not moved any application for removal of the said(old) poles before any concerned authority since their installation, thus the contention of petitioners regarding installing of altogether new poles on their land was ill-founded---Respondents had placed before the Court photographs of old and new electricity poles, whose comparison showed that the old electricity poles had occupied more space and were smaller in height, whereas new poles were being installed at smaller area having better height , thus the plea of the petitioners, regarding risk, had no force as new poles apparently were of minimum risk to the residents---Record showed that the work of installation was almost complete, therefore, there was no valid ground for grant of interim injunction---Public good overrode individual interest---Electricity had been provided in the locality from the poles-in-question, as such any order from the Courts would have an adverse effect to the residents of the area being a disadvantage to a large number of consumers against few individuals (petitioners)---Respondents (WAPDA) on account of conferment of powers upon it could lawfully erect poles and lay the wires without consent of plaintiff and without permission of the District Magistrate---Balance of convenience was important ingredient to grant relief under O. XXXIX, Rr. 1 & 2 of the C.P.C which, in the present case, leaned toward residents of area, who were being facilitated with the supply of electricity through the poles-in-question and they would be made to suffer if interim stay be granted---In determining balance of convenience, interest of individual must give way to public interest---Petitioners were unable to satisfy the Court that irreparable loss could be caused to them by replacement of old poles erected since 1984, with new ones, if the application for interim injunction was not granted---Balance of convenience also did not lean in favour of the petitioners, whereas prima facie case was yet to be proved through evidence in the main suit---No illegality or infirmity was found in the impugned orders passed by both the Courts below not granting temporary injunction to the petitioners---Revision petition was dismissed, in circumstances.

Wapda through its Project Director, Grid System Construction, Multan v. Pakistan Atomic Energy Commission Employees Co-operative Housing Society Ltd. Islamabad PLD 1993 Lah. 237; Ghias ud Din v. Executive Engineer Wapda 1989 CLC 200; Water and Power Development Authority through Chairman, Wapda vs. Ch. Bashir Ahmed and others 1996 SCMR 1516 and Manzoor Textile Mills Ltd. v. Special Judge Banking, Lahore and others 1996 CLC 422 ref.

(b) Pakistan Water and Power Development Authority Act (XXXI of 1958)---

----S. 14---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 with alternate demand for compensation---Interim injunction, grant of---Scope---Irreparable loss---Scope---Installation of electricity poles/wires by Water and Power Development Authority (WAPDA)---Demand of compensation by the petitioners as an alternate plea had negated the claim of having a good prima facie case, balance of convenience and irreparable loss to the petitioners---Petitioners were, thus, suffering monetary loss on account of the use of land for erecting electric poles, which loss could be measured in terms of money and, therefore, the present case was not one of irreparable loss---No stay could be granted which interfered in the performance of public duties merely for the reason that as a result of that act individual would suffer monetary loss which could be measured and compensated in terms of money---Revision petition was dismissed.

Nauman Azhar v. Celvas (Pvt.) Ltd. 2020 CLC 675 and Wapda v. Pakistan Atomic Energy Commission Employees Cooperative Housing Society PLD 1993 Lah. 237 ref.

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

----O. XXXIX, Rr. 1 & 2---Interim injunction, grant of---Scope---Equitable relief---Injunction was a form of equitable relief and was to be issued in aid of equity and justice but not in aid of injustice---For grant of injunction, it was mandatory not only to establish that petitioner had a prima facie case, but also that balance of convenience was on his side and that he would suffer irreparable loss/injury unless he was protracted during the pendency of suit.

Puri Terminal Ltd. v. Government of Pakistan through Secretary, Ministry of Communications and Railways, Islamabad and 2 others 2004 SCMR 1092 ref.

Haseeb Hassan for Petitioners.

Muhammad Asif Khan for Respondents.

2021 Y L R 2092

[Islamabad]

Before Lubna Saleem Pervez, J

KHURSHEED AHMED---Petitioner

Versus

RENT CONTROLLER, ISLAMABAD (WEST) and another---Respondents

Writ Petition No. 3220 of 2020, decided on 3rd May, 2021.

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

----Ss. 17 & 11---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Eviction of tenant---Personal bona fide need of landlord---Payment of premium/"Pagri" by the tenant to previous landlord--- Tenant moved application before the Rent Controller seeking grant of stay of eviction proceedings which application was dismissed---Petitioner/tenant assailed order of refusal of stay of eviction proceedings contending that the respondent (eviction petitioner/ subsequent landlord of the demised property) could not terminate tenancy agreement as the tenant had deposited considerable amount regarding Premium/ "Pagri" and he wanted to purchase demised property---Held, that payment of premium/"Pagri" could not operate as obstacle against the right of landlord/ respondent to use his own property when genuinely required---No illegality or infirmity was found in the impugned order of rejecting the application for stay of eviction proceedings passed by the Rent Controller---Constitutional petition was dismissed, in circumstances.

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

----Ss. 17 & 11---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Specific Relief Act ( I of 1877 ), Ss. 42, 39, 54 & 56---Suit for declaration, cancellation, permanent injunction and mandatory injunction filed by the tenant---Eviction petition filed by the subsequent landlord on basis of personal bona fide need---Payment of premium/ "Pagri" by the tenant to previous landlord---Tenant moved application before the Rent Controller seeking stay of eviction proceedings which application was dismissed---Petitioner/ tenant assailed order of refusal of temporary injunction contending that admission of receipt of "pagri" was a charge/claim created in his favour and unless the claim was settled in a civil suit filed by him, the eviction would be unlawful---Held, that contention of the petitioner was not convincing as alleged charge did not confer the rights of ownership upon him who shall remain a tenant; and could only claim his amount paid as "pagri" as per terms and conditions of agreement but could not force the owner to sell his(owner's) property for the reason that he had paid a considerable amount as "pagri"---Suit filed by the tenant and eviction petition filed by present landlord were all together separate, different and distinct proceedings for resolving the disputes falling in the jurisdiction of respective statutes---No illegality or infirmity was found in the impugned order of rejecting the application for stay of eviction proceedings passed by the Rent Controller---Constitutional petition was dismissed, in circumstances.

Sheikh Muhammad Yousaf v. District Judge, Rawalpindi 1987 SCMR 307 and Aziz ur Rehman v. Pervaiz Shah 1997 SCMR 1819 ref.

Muhammad Shahid Kamal Khan for Petitioner.

Sh. Junaid Nadeem for Respondents.

2021 Y L R 2166

[Islamabad]

Before Ghulam Azam Qambrani, J

AAMIR MUNIR PURI---Petitioner

Versus

Mst. SAIMA NAEEM and 4 others---Respondents

Writ Petitions Nos. 3166 and 3878 of 2020, decided on 25th February, 2021.

Family Courts Act (XXXV of 1964)---

----S. 17-A---Constitution of Pakistan, Art. 199---Constitutional petition---Suit for maintenance---Interim maintenance allowance, fixation of---Maintainability---Scope---Petitioner assailed fixation of interim maintenance allowance being exorbitant---Validity---Impugned order was interlocutory in nature, as it did not dispose of the main suit---Any order passed by the Judge, Family Court under S.17-A of Family Courts Act, 1964, could not be challenged through constitutional petition, unless the Court passing the order lacked jurisdiction or the order was otherwise illegal---Interim orders qua fixation of monthly maintenance by the Judge, Family Court could not be assailed in constitutional jurisdiction, even though in some cases they were harsh because the determination of adequacy or inadequacy of the quantum of maintenance would certainly require factual evidence or inquiry, which could not be made in the proceedings under Art. 199 of the Constitution---Constitutional petition was dismissed.

Shameneh Haider and others v. Haider Ali Khan 2018 CLC Note 43; Amir Mehmood Hussain v. Niha Amir Syed 2011 MLD 1105; Tahir Ayub Khan v. Miss Alia Anwar 2015 YLR 2364; Ibrar Hussain v. Mehwish Ran and others PLD 2012 Lah. 420 and Muhammad Shahbaz Khalid v. Judge Family Court Lahore PLD 2013 Lah. 64 ref.

Ali Adnan Dar v. Judge Family Court PLD 2016 Lah. 72; Amir Mehmood Husain v. Niha Amir Syed 2011 MLD 1105 and Minhaaj Saqib v. Najmul Saqib and others 2018 CLC 506 rel.

Mudassar Rizwan for Petitioner.

Rao Shaheryar for Respondents Nos. 1 to 4.

2021 Y L R 2245

[Islamabad]

Before Mohsin Akhtar Kayani and Fiaz Ahmad Anjum Jandran, JJ

MUDASSAR ALI---Appellant

Versus

MUHAMMAD ZAFAR IQBAL PIRZADA and 2 others---Respondents

F.R.A. No. 115 of 2013, heard on 24th August, 2021.

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

----Ss. 15 & 12---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Suit for specific performance of sale agreement was dismissed by the Trial Court as appellant failed to pay remaining sale consideration within prescribed time---Appellant had claimed the dismissal as illegal and requested for an amount of Rs. 1.1 Million which was paid by him to the respondent, in addition to Rs. 2 Million paid as earnest money, through two cheques for extension of time for payment of remaining sale consideration in accordance with two subsequent agreements---Two documents did not carry signatures of any witness, and appellant had no evidence to prove him delivering the document of subsequent agreement to the respondent or the said respondent accepting the same---Independent witness/Bank employee endorsed the stance of respondent in express terms by repelling the assertion of the appellant regarding documentary evidence, i.e. the cheques---No right could be conferred upon any individual to have a transaction of Rs.10-Million who by making of payment of Rs.2-Million, linger on the matter for indefinite period particularly when value of the properties is increasing day by day and sought specific performance according to his own whims and wishes---Impugned judgment and decree being well reasoned could not be interfered with---Appeal was dismissed.

(b) Equity, principles of---

----Applicability--- Case of specific relief---Good conscience---Unfair conduct of party---Relief of the specific performance had its origin/roots in equitable system of justice, wherein amongst others the hallmark principle was "he who comes to equity must come with clean hands"---Litigant sought remedy of specific relief but chosen improper, deceiving, fraudulent means to reach the destination the same would be against good conscience---Court's aiding such litigant for approaching the destination would amount to inequity---Court could not act as abettor to a party who was ill-motivated and knocking the door of court of justice with unfair conduct---In the maxim: "He who comes to equity must come with clean hands", word "must" retained significance and depicted the intent of introducers of the maxim of equity.

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

----Ss. 12 & 42---Suit for Specific performance of agreement---Discretion of Court---Scope---Court had ample discretion to deny the relief to a purchaser of an immovable property keeping in view the circumstances of each case as he could not claim specific performance of a contract as a matter of right even where it was lawful to do so.

Hafiz Muhammad Iqbal v. Gul-e-Nasreen 2019 SCMR 1880; Muhammad Abdul Rehman Qureshi v. Sagheer Ahmad 2017 SCMR 1669; Farzend Ali v. Khuda Bakhsh PLD 2015 SC 187; Adil Tiwana v. Shaukat Ullah Khan Bangash 2015 SCMR 728; Ghulam Nabi v. Muhammad Yaqoob PLD 1983 SC 344 and Sirbuland v. Allah Lok 1996 SCMR 575 rel.

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

----Art. 112(2)---Judicial notice---Market value, elevation of---Case of specific relief---Earnest money, premium upon---Equitable jurisdiction of Court---Maxim: "He who seeks equity must do equity"---Applicability--- Appellant/buyer paid Rs. 2-Million as earnest money in 2004 which was acknowledged by the respondent / seller--- Said amount remained in use of the respondent for around 1½ decade approximately---Value of the Rupee depreciated after 2004 and today in 2021 the value of the same amount would surely be much folded higher--- Principles of equitable administration of justice system are equally applicable upon all---Trial Court remained silent on the return of earnest money without any premium which was unfair/unjust on the touchstone of equitable principles---High Court (declaring Rs. 4-Million as returnable) directed the respondent to return, within a period of thirty days, an amount of Rs. 2-Million more in addition to the already returned earnest money i.e. Rs. 2-Million.

Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others 2019 SCMR 524 and Shaukat Ullah Khan Bangash v. Adil Tiwana and others 2018 SCMR 769 rel.

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

----Art. 71---Oral and documentary evidence---Value of---Documentary evidence carried much weight and in a case where there was a contest, the oral evidence would give way to the documentary evidence.

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

----Arts. 17, 79 & 78---Specific Relief Act (I of 1877), Ss. 12 & 42---Two documents carrying a financial transaction were in negation of the provisions of the Art. 17---Admittedly no mention of any witness to the said documents---Only alleged executant was the respondent who unequivocally stated that his signatures were forged---Respondent repeatedly offered for the verification of the said signatures but appellant never opted said option---Presumption was against the appellant who did not accept challenge/offer of the respondent qua having said test.

Yasir Yousaf Abbasi for Appellant.

Shakir Javed and Syed Masood Hussain for Respondents.

2021 Y L R 2286

[Islamabad]

Before Miangul Hassan Aurangzeb and Tariq Mehmood Jahangiri, JJ

Syed MUHAMMAD SAJJAD SHABBIR BUKHARI---Appellant

Versus

FEDERAL GOVERNMENT EMPLOYEES HOUSING FOUNDATION, ISLAMABAD and another---Respondents

Regular First Appeals Nos. 26 of 2013 and 197 of 2020, decided on 22nd June, 2021.

Allotment---

----Cancellation of allotment---Criteria, violation of---Date of birth---Proof---Appellant-plaintiff was allotted a plot in residential scheme of defendant-Foundation---Plot in question was cancelled on the basis of giving incorrect date of birth, as the same was a violation of criteria of allotment---Suit filed by plaintiff was dismissed by Trial Court---Validity---Letter to prove date of birth of plaintiff was issued by an official of Ministry of Information and Broadcasting to defendant-Foundation, wherein it was apprised that date of birth of plaintiff was 16-3-1952 and not 16-3-1942---Show-cause notices regarding cancellation of plot on the basis of mentioning wrong date of birth were issued to appellant-plaintiff and finally allotment of plot was cancelled---Appellant-plaintiff was not entitled to any relief as he failed to produce any convincing evidence in support of correctness of his date of birth like Birth Certificate, Matric Certificate, Service Record and record of National Database and Registration Authority---Appellant-plaintiff had violated instructions/conditions mentioned in brochure and provisional allotment letter by providing false and incorrect information/date of birth---Appeal was dismissed, in circumstances.

Senate through Chairman v. Shahiq Ahmed Khan 2016 SCMR 460; Muhammad Sidiq through L.Rs. v. Punjab Service Tribunal, Lahore and others 2007 SCMR 318; Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary, Sindh and others 2005 SCMR 1814; Shakeel Ahmad Zaidi and others v. Secretary, Higher Education, Government of Punjab, Lahore and others 2021 SCMR 474; Engineer in Chief Branch through Ministry of Defence, Rawalpindi and others v. Jallal ud Din PLD 1992 SC 207; Muhammad Feroz v. Deputy District Officer (Education) and others 2005 SCMR 1490; Mst. Sameena Ashfaq Syed Amin AL v. Government of Pakistan through Ministry of Finance and 3 others 2018 CLD 475; Shafqatullah and others v. District and Sessions Judge, Nowshera, N.W.F.P and 4 others 2001 SCMR 274; Manzoor Hussain and 3 others v. Muhammad Siddique 2000 CLC 623; Shahnaz Parveen and another v. Javed Yaqoob and others 2020 MLD 638; University of the Punjab and another v. Malik Jehangir Khan 1994 PLC (C.S.) 314 and Muhammad Siddique v. Yahya Khan 1994 CLC 1374 rel.

Khalil ur Rehman Abbasi for Appellants.

2021 Y L R 2334

[Islamabad]

Before Tariq Mehmood Jahangiri, J

NISAAR BIBI---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary of Interior, Islamabad and 7 others---Respondents

Writ Petition No. 2081 of 2021, decided on 23rd June, 2021.

Criminal Procedure Code (V of 1898)---

----S. 491---Constitution of Pakistan, Art. 199---Custody of minor---Constitutional jurisdiction of the High Court--- Scope--- Petitioner (maternal grandmother of minors) invoked constitutional jurisdiction of the High Court to seek handing over the custody of minors to her from paternal grandparents (respondents)---Held, that matter of custody of the minor children could be brought before High Court under S.491, Cr.P.C., only if the children were of very tender ages; who had quite recently been snatched away from lawful custody and there was a real urgency in the matter---High Court could only regulate interim custody of children leaving the matter of final custody to be determined by a Guardian Judge ---Petitioner had not been deprived of custody of the minors few days ago---Neither the minors had been snatched from the petitioner nor there was any emergency involved in the matter ---Constitutional petition was dismissed, in circumstances.

Mst. Nadia Perveen v. Mst. Almas Noreen and others PLD 2012 SC 758 and Naziha Ghazali v. The State and another 2001 SCMR 1782 ref.

Sajid ur Rehman Mashwani for Petitioner.

Imran Feroz for Respondents Nos. 4 and 5.

2021 Y L R 2388

[Islamabad]

Before Aamer Farooq, J

SAEED MUHAMMAD---Petitioner

Versus

MUHAMMAD IMRAN and another---Respondents

Criminal Miscellaneous Nos. 745-BC, 746-BC and 825-BC of 2020, decided on 8th January, 2021.

(a) Constitution of Pakistan---

----Art. 189---Decision of Supreme Court---Effect---Circular by High Court cannot take precedent over principles laid down by Supreme Court.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302, 324, 337-D, 337-F(i)---Qatl-i-Amd, attempt to commit Qatl-i-Amd, Jaifah and Ghayr Jaifah Damiah---Bail, cancellation of--- Principle---Matter was not fixed before the same judge was violation of principle settled by Supreme Court---Complainant sought cancellation of bails granted to all accused persons on the plea that the same were allowed by different Judges and it was violation of principle settled by Supreme Court---Validity---In year 2020 there were extraordinary circumstances and Court in the wake of Government policy and in order to protect litigants, legal fraternity and judges adopted policy and working in shifts and maintaining duty roster accordingly---Only tentative assessment was made at bail stage and deeper appreciation was to be avoided---Complainant failed to show from record of police to controvert conclusion arrived at by Courts granting bail---Report under S.173, Cr.P.C. had already been filed and trial commenced---High Court directed Trial Court to expeditiously conclude the case and declined to interfere in bail granting orders---Petition was dismissed accordingly.

The State through Advocate-General N.W.F.P. v. Zubair and 4 others PLD 1986 SC 173; Bilal Khan v. The State through P.G. Punjab and another 2020 SCMR 937; Muhammad Azam v. The State 1996 SCMR 71; Shameel Ahmed v. The State 2009 SCMR 174; Baz Muhammad Kakar and others v. Federation of Pakitan through Ministry of Law and Justice, Islamabad and others PLD 2012 SC 870; Shoukat Ilahi v. Javed Iqbal and others 2010 SCMR 966; Mudassar Altaf and another v. The State 2010 SCMR 1861; 2002 SCMR 171; Sami Ullah and another v. Laiq Zada and another 2020 SCMR 1115; Sharif Khan v. The State (Cr. Petition No.1228 of 2020) and Nazir Ahmed and another v. The State and others PLD 2014 SC 241 rel.

Mukhtar Ahmed Tarar for Petitioner.

Raja Yasir Shakeel for Respondent No.1 (in Criminal Miscellaneous No. No.745-BC of 2020).

Naveed Malik for Respondent No.1 (in Criminal Miscellaneous No.746-BC of 2020).

Muhammad Sadiq Khan for Respondent No.1 (in Criminal Miscellaneous No. No.825-BC of 2020).

Awais Haider Malik, State Counsel.

2021 Y L R 1

[Sindh]

Before Irfan Saadat Khan and Fahim Ahmed Siddiqui, JJ

The GOVERNMENT OF SINDH through Secretary, Land Utilization Department and another---Appellants

Versus

KARACHI GYMKHANA through President---Respondent

High Court Appeal No. 253 of 2017, decided on 12th June, 2020.

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

----S. 2(e)---Valid contract--- Proof---Plaintiff was a Recreational Club and was aggrieved of refusal of Provincial Government to extend lease of land in its favour---Single Judge of High Court decreed the suit in favour of plaintiff---Validity---Provincial Government entered into an agreement of lease with the Club through a valid agreement in the year 1886---Provincial Government, after expiry of the lease offered the Club for renewal of the same which was duly accepted by the Club but the offer was subsequently withdrawn---All parameters as required for a valid contract were fulfilled as explained in S. 2(e) of Contract Act, 1872---Promise of renewal of lease and consideration was lease money which were there in the contract, hence all parameters of a valid agreement were duly fulfilled---When a legally enforceable agreement was entered between the parties it was a binding contract which had to be performed and could not be acted upon as per will, wish and desire of Provincial Government---Not renewal of lease which was illegal but in fact it was withdrawal of letter which was illegal as the same was tainted with malice and with some extraneous consideration, not brought on record---Witnesses did not produce any evidence so as to suggest that approval initially granted by Provincial Government was illegal, without approval or without following rules of procedure---After expiry of lease, an offer for renewal was made by Provincial Government which was very much accepted by the Club, however consideration received for renewal of lease was subsequently returned and offer was withdrawn, such act was illegal on the part of Provincial Government---When a lease in perpetuity was enforced and effected, withdrawal of the same without assigning any reason was illegal---Single Judge of High Court found such aspect against Provincial Government---Division Bench of High Court declined to interfere in the judgment and decree passed by Single Judge of High Court as there was no illegality, irregularity, non-reading or misreading of evidence---Intra-court appeal was dismissed, in circumstances.

Mehmood Akthar Naqvi v. Malik Israr, Senior Member Board of Revenue PLD 2018 SC 468; Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907; The Engineer-in-Chief Branch through Ministry of Defense, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207; Messrs Excell Builders and others v. Ardeshir Cowasjee and others 1999 SCMR 2089; Begum Nusrat Ali Gonda v. Federation of Pakistan and others PLD 2013 SC 829; Yousaf Ali v. Muhammad Aslam Zia and others PLD 1958 SC (Pak.) 104; Dr. Zahir Ansari and others v. Karachi Development Authority and others PLD 2000 Kar. 168; Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652; Agar Textiles (Private) Ltd. through Authorised Officer v. Federation of Pakistan through Secretary, Ministry of Water and Power, Islamabad and 2 others PLD 2016 Sindh 431; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; Muhammad Asif Bangash v. A.S.P., Kohat and 4 others PLD 2005 Pesh. 107; Sultan Textile Mills (Karachi) Ltd., Karachi v. Muhammad Yousuf Shamsi PLD 1972 Kar. 226; Habib Bank Ltd. v. A.B.M. Graner (Pvt.) Ltd. and others PLD 2001 Kar. 264; Muhammad Matloob and 10 others v. Jamshed K. Marker and 2 others PLD 2006 Kar. 523; Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187; Government of Sindh through Secretary and Director General, Excise and Taxation and another v. Muhammad Shafi and others PLD 2015 SC 380; M.A. Naser v. Chairman, Pakistan Eastern Railway and others PLD 1966 Dacca 69; Ch. Ahmed Nadeem v. Abdul Qayyum and another PLD 2016 Isl. 98; Maulana Abdul Haque Baloch and others v. Government of Balochistan through Secretary Industries and Mineral Development and others PLD 2013 SC 641; Syed Mehmood Akhtar Naqvi and others v. Malik Israr, Senior Member, Board of Revenue Sindh and others PLD 2018 SC 468; Liaqat Ali Khan and others v. Falak Sher and others PLD 2014 SC 506; Mst. Mehmooda Begum v. Syed Hassan Sajjad and 2 others PLD 2010 SC 952; Shakeel Ahmed v. Mst. Shaheen Kousar 2010 SCMR 1507 and Muhammad Sharif and others v. Nabi Bakhsh and others 2012 SCMR 900 distinguished.

Commissioner of Income Tax, Peshawar Zone, Peshawer v. Messrs Siemen A.G. PLD 1991 SC 368; Sharif Haroon v. Province of Sindh and another PLD 2003 Kar. 237; Karachi Metro-politan Corporation v. Mst. Rahima Bai and 7 others 1988 MLD 374; Nasira Sultana v. Habib Bank Limited and others PLD 1975 Kar. 608; Abdullah Bhai v. Ahmad Din PLD 1964 SC 106; Haji Noor Muhammad and others v. Karachi Develop-ment Authority and 2 others PLD 1975 Kar. 373; Devi Prasad Sri Krishna Prasad Ltd. and another v. Secretary of State AIR 1941 Allahabad 377; Von Hatzfeldt Wildenburg v. Allexander (1912) 1 Ch 284; Kalimuddin Ansari v. Director, Excise and Taxation PLD 1971 SC 114; Khushi Muhammad v. Noor Din and others PLD 2002 SC 702; Messrs Green Fuels v. Shell Pakistan Limited 2005 CLC 1602; Muhammad Jamil v. (1) The Chairman, Industrial Court, West Pakistan and (2) The Orient Match Factory, Limited, Shahdara PLD 1964 SC 559; Commissioner Inland Revenue (Zone-I) LTU, Karachi v. Messrs Linde Pak Ltd., Karachi 2020 SCMR 333; Manindra Nath Bose v. Bala-ram Chandra Patni and others AIR 1973 Calcutta 145 (V 60 C 35) and Associated Hotels of India Ltd. v. R. N. Kapoor AIR 1959 SC 1262 (V 46 C 174) ref.

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

----Ss.12, 42 & 54---General Clauses Act (X of 1897), S.21---Suit for specific performance of agreement, declaration and injunction---Locus poenitentiae, principle of---Applicability---Plaintiff was a recreational club and aggrieved of refusal of Provincial Government to extend lease of land in its favour---Validity---Though an Authority passing order could withdraw and rescind the same but the same should be legally justified and established that the original grant was illegal hence the same was recalled/rescinded or withdrawn---Original offer letter issued, in the present case, was in accordance with law, whereas subsequent withdrawal, without assigning any reason was illegal---Division Bench of High Court declined to endorse such act of Provincial Government---Principle of locus poenitentiae was not applicable in circumstances.

Shabbir Shah, Additional Advocate General, Sindh for Appellants.

Khawaja Shams-ul-Islam for Respondent.

2021 Y L R 64

[Sindh]

Before Zulfiqar Ahmad Khan, J

DANISHAKHTAR and 253 others---Plaintiffs

Versus

DIRECTORATE OF ESTATE PROJECTS PAKISTAN AIR FORCE, DTE, OF PROJECT-1 through Assistant Chief of Air Staff and others---Defendants

Suit No. 329 of 2020 and C.M.As. Nos. 2868, 2869, 3781, 4615, 4813, 4760, 4827, 4818 and 4819 of 2020, decided on 11th June, 2021.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(b) & 25---Civil Procedure Code (V of 1908), S. 151 & O. I, R.10---Settlement of claims---Role of National Accountability Bureau---Bail granting order, status of---Dispute was with regard to embezzlement of investments made by thousands of persons in a Housing Scheme--- National Accountability Bureau initiated inquiry in the matter and arrested defendants/ accused persons---Division Bench of High Court released the defendants/ accused persons on bail with a direction to settle claims of investors/claimants---Plaintiffs were among the affectees of "the Housing Scheme" fraud and sought refund of their amounts along with profits---Plea raised by defendant/ authority was that role of National Accountability Bureau as depicted in order of Division Bench of High Court was of permanence in nature and all monies and liabilities had to be settled under National Accountability Ordinance, 1999---Validity---At the best the order passed by Division Bench of High Court could be taken as a release or bail granting order in favour of accused persons/defendants---Mechanism envisaged in order passed by Division Bench of High Court only bound defendants/accused persons and the same was not final order, as investigation against defendants/accused persons was pending for a period of six months---If defendants/accused persons would fail to comply with the order passed by Division Bench of High Court they were to be arrested and re-investigated, leaving aside civil and criminal liabilities other than those which could fall under National Accountability Ordinance, 1999---Order passed by Division Bench of High Court was to continue under appropriate legal framework and in the suit, other than principal sums, interest, losses, costs, lien and damages claimed by plaintiffs needed to be adjudicated in accordance with law, including law of contract and tort---Such disbursements which were neither outcome of any Voluntary Return nor Plea Bargaining under S. 25 of National Accountability Ordinance, 1999, could not be channelized through National Accountability Bureau's machinery---National Accountability Bureau was to reconsider its action after lapse of six months term specified to pend inquiry, therefore, National Accountability Bureau was to remain part of disbursement process and timely reports were to be submitted to National Accountability Bureau so that it could plan its action after lapse of six months' term---High Court directed that all other liabilities including and not limited to any civil claim of general public, payment due to contractors, consultants and to third parties and payments which had become due in respect of utility bills, government taxes, fees, charges, levies or other legitimate payments and dues which could be incurred or become payable till complete closure of disbursement scheme, by accused persons/defendants from their own sources immediately or within any stipulated dates set out for respective payments---High Court further directed to get regular audit of all transactions conducted by office of Official Assignee in the interest of transparency and good accounting practice---Application was disposed of accordingly.

Muhammad Nouman Jamali, for Plaintiffs Nos. 1 to 250.

Muhammad Haseeb Jamali and Danish Rasheed Khan for Plaintiffs No.251 to 254.

Ahmed Masood for Defendant No. 2 along with Khoja Altaf.

Imdad Ali Channa for Applicant/ intervener Anwar Hussain.

Syed Sultan Ahmed for Applicant/ intervener Samreen Pasha.

Saad Siddiqui for Applicant/ intervener Dr. Mazhar Naeem.

Ms. Humaira Baig for Applicant/ intervener Fahad Ahmed.

Sattar M. Awan, Special Prosecutor NAB.

Sqn. Ldr. Qaswar PAF.

Irfan Ahmed Memon, D.A.G. for Respondents.

2021 Y L R 91

[Sindh]

Before Yousuf Ali Sayeed, J

KHURRAM ZAFAR through Constituted Attorney---Plaintiff

Versus

Mst. SARAH and another---Defendants

Suits Nos. 195 and 613 of 2012, decided on 12th December, 2019.

Civil Procedure Code (V of 1908)--

----O. XXXIX, Rr. 1 & 2---Suit for declaration--- Benami transaction---Temporary injunction, grant of---Ingredients---Plaintiff had failed to show his source of consideration or custody of title documents in his favour---Mere assertion of plaintiff by itself was not sufficient for the purpose---Defendant had possession of suit property---Plaintiff had no prima facie case and balance of convenience in his favour in circumstances--- Application for temporary injunction was dismissed accordingly.

Abdul Majeed and others v. Amir Muhammad and others 2005 SCMR 577 and Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 ref.

Asim Iqbal for Plaintiff (in Suit No.195 of 2012).

Haider Waheed for Defendant No.1 (in Suit No.195 of 2012).

Haider Waheed for Plaintiff (in Suit No.613 of 2012).

Asim Iqbal for Defendant No.1 (in Suit No.613 of 2012).

2021 Y L R 104

[Sindh]

Before Salahuddin Panhwar, J

AJAB KHAN---Applicant

Versus

Mirza QAYYUM BAIG through Legal heirs and others---Respondents

Revision Application No. 68 of 2016, decided on 21st January, 2020.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Art. 79---Suit for specific performance---Proof of execution of document required by law to be attested---Scope---Plaintiffs claimed ownership of suit property on the basis of allotment by Municipal Corporation (MC) to their predecessor-in-interest whereas the defendant claimed ownership on the basis of sale agreement---Trial Court decreed the suit and the appellate court dismissed the appeal---Validity---Trial Court had addressed and adjudicated all issues in its judgment---Admittedly, defendant had failed to examine the marginal witnesses to one payment of sale consideration and possession as well as construction---Plaintiffs had submitted certain documents pertaining to lease issued by MC and had got examined the relevant officer of MC---No mis-reading or non-reading of evidence was found in the impugned judgment---Revision appli-cation was dismissed, in circumstances (b) Civil Procedure Code (V of 1908)---

----S. 115---Revisional jurisdiction of High Court--- Scope--- Revisional jurisdiction of High Court is limited, unless it is shown that findings of two courts below are illegal and perverse the same will not be disturbed.

Muhammad Idrees v. Muhammad Parvez 2010 SCMR 5 rel.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Art. 79---Suit for specific performance---Proof of execution of document required by law to be attested---Scope---Burden of proof, in a suit for specific performance of contract, always remains upon the beneficiary of document, which burden includes satisfaction of Art. 79 of Qanun-e-Shahadat, 1984---Failure to discharge such burden shall always have its consequences.

Farid Bakhsh v. Jind Wadda 2015 SCMR 1044 rel.

Sathi M. Ishaque and Samir-ur-Rehman Khan for Applicant.

2021 Y L R 114

[Sindh]

Before Muhammad Saleem Jessar, J

KIM SEON BAE---Applicant

Versus

The STATE and 2 others---Respondents

Crimnal Revision Application No. S-49 of 2016, decided on 6th November, 2019.

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

----S. 489-F---Criminal Procedure Code (V of 1898), S. 417---Dishonestly issuing a cheque---Appreciation of evidence---Appeal against acquittal---Prosecution case was that the accused/respondent had given a cheque amounting to 50,000 US Dollars equivalent to Pak Rs. 45,00,000/-, which on presentation at the concerned Bank was dishonoured due to insufficient funds---Admittedly, the cheque was issued by the accused/respondent and same was dishonoured on presentation---Accused contended that cheque was given to complainant for security purpose in the year 2006, whereas complainant alleged that accused purchased road reflector CATS EYES from him, amount of which was not paid and cheque was given to him in the year 2012 towards the dues outstanding against the accused---Statement made in his evidence by the complainant/appellant appeared to be vague and sketchy---Neither complainant had given any specific date when the alleged transaction of "EYE CATS" took place between him and the accused, nor had he given the details of the such business transaction or produced any document in respect of such transaction---Evidence of complainant showed that he sent the container of "CATS EYES" in the year 2007, thus, it appeared that the said transaction took place in the year 2007---Stand taken by the accused that he had issued the said cheque as security in the year 2006 was strengthened, because normally in case any huge business transaction took place, certain security was deposited by the party who had taken the goods---Although the complainant/appellant in his deposition had stated that he came to Pakistan 27/28 times and in the year 2012 he visited Pakistan seven times, for the purpose of receiving payment from the accused but not a single document had been produced by him to establish such fact---Bare words not supported by any documentary/tangible evidence could not be accepted---Complainant alleged that the accused issued cheque in question on 15-03-2012 which was presented by him on the same date, which fact was also confirmed by Bank Manager/witness in his evidence---Said fact also negated the plea taken by the complainant that the accused issued the cheque in question with dishonest intention, because if the accused had any dishonest intention, then as to why he continued to make payment through other Banks, particularly even after lodging of the FIR on 14-10-2012 for an amount of US DOLLARS 5000, as admitted by the complainant himself---Appeal against acquittal was dismissed, in circumstances.

1991 MLD 1; 1991 SCMR 2300; 2001 MLD 1277; PLD 199 SC 45; 2001 MLD 1169; 2004 YLR 2748; 2013 YLR 1798; 2019 PCr.LJ 295, PLD 2011 Lah. 52; 2001 SCMR 90; Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 ref.

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

----S. 489-F---Criminal Procedure Code (V of 1898), S. 342---Dishonestly issuing a cheque---Appreciation of evidence---Appeal against acquittal---Defence plea of issuing the disputed cheque as security---Scope---Plea of the accused that he had issued the cheque in question in the year 2006 for security purpose and not in the year 2012 also got support from the fact that the said cheque was of Union Bank---Bank Manager, in his cross-examination, clearly admitted that the Union Bank was acquired by the Standard Chartered Bank in the year 2006---Not understandable as to why, after acquiring of 'The Union Bank' by 'Standard Chartered Bank' in the year 2006, the accused would keep the cheque book of Union Bank with him for such a long period---However, if the plea of the accused that he had issued the said cheque in the year 2006 for security purpose was accepted, then it would cope with the subsequent events, as the accused had issued an undated cheque for security purpose only, which was kept by the complainant and then used in the year 2012 which was got dishonoured by presenting the same after about six years---Circumstances established that the cheque in question was issued by the accused, not with any dishonest intention, in the year 2006 for purpose of security only and not to repay a loan or to fulfil an obligation---Appeal against acquittal was dismissed, in circumstances.

Major Anwar-ul-Haq v. The State PLD 2005 Lah. 607 and Raza Khan v. M. Abid Khan 2014 YLR 90 rel.

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

----S. 417---Appeal against acquittal---Presumption--- Double presumption of innocence of the accused was attached to the order of acquittal---Court act slowly in interfering with an order of acquittal, unless grounds for acquittal were perverse, wholly illogical or unreasonable.

Muhammad Asghar and another v. The State PLD 1994 SC 301; Mirza Noor Hussain v. Farooq Zaman and 2 others 1993 SCMR 305; Yar Mohammad and 3 others v. The State 1992 SCMR 96 and Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 rel.

Abdul Haleem Siddiqui for Appellant.

Maqbool Ahmed for Respondent No.2.

Ms. Amna Ansari, Additional Prosecutor General, Sindh for the State.

2021 Y L R 141

[Sindh]

Before Adnan Iqbal Chaudhry, J

AL-HABIB CO-OPERATIVE HOUSING SOCIETY LTD. Through Administrator---Applicant

Versus

Mrs.SHAMIM BARLAS and another---Respondents

Judicial Miscellaneous Application No. 45 of 2019, decided on 5th May, 2020.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Limitation Act (IX of 1908), Art. 181 & Ss. 5 & 18---Cooperative Societies Act (VII of 1925), S.54---Ex-parte decree, setting aside of---Limitation---Fraud and misrepresentation--Effect---Contention of applicant-Society was that impugned judgment and decree had been obtained through fraud and misrepresentation---Validity---Address of applicant-Society provided in the plaint was incorrect and summons returned unserved---Applicant Society was never served with summons of the suit---Respondents had suppressed documents from the Court and impugned judgment and decree were result of fraud and misrepresentation--- Limitation for application under S.12(2) of C.P.C. would be governed by Art. 181 of Limitation Act, 1908 which did provide a period of three years from the date when a right to apply did accrue---Right to apply would accrue when the impugned judgment and decree were passed---Where applicant had established that he was prevented by fraud from acting earlier, then S.18 of Limitation Act, 1908, would come to his aid to make limitation run from the date when fraud became known to him---Applicant was entitled to the benefit of S.18 of Limitation Act, 1908 and present application was within time---Impugned judgment and decree were set aside and suit was restored---Application for setting aside of ex-parte decree was allowed, in circumstances.

Rahimbhoy Habibbhoy v. Charles Agnew Turner (1893) 17 Bom. 341; Biman Chandra Datta v. Promotha Nath Ghose AIR 1922 Cal 157; Bhagwana v. Shadi AIR 1934 Lahore 878; Asanulla Fakir v. Jogandara Nath Sarkar PLD 1961 Dacca 703 and Najmul Haq Faraji v. Panchanan Poddar PLD 1968 Dacca 887 rel.

Nadir Khan Burdi for Applicant.

Ms. Saima Jamil for Respondent No.1.

Nemo for Respondent No. 2.

2021 Y L R 159

[Sindh]

Before Salahuddin Panhwar and Shamsuddin Abbasi, JJ

FAHIM ALI---Appellant

Versus

The STATE---Respondent

Special Criminal Acquittal Appeal No. 42 of 2018, decided on 18th September, 2019.

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

----Ss. 353, 324 & 34---Explosive Substances Act (VI of 1908), Ss. 3 & 4---Anti-Terrorism Act (XXVII of 1997), S.7---Act of terrorism, causing explosion likely to endanger life or property, attempt to cause explosion or making or keeping explosive with intent to endanger life or property, assault or criminal force to deter public servant from discharge of his duty, attempt to commit qatl-i-amd and common intention---Appreciation of evidence---Sentence, reduction in---Scope---Accused was convicted for having been found in possession of pistol and rifle grenade---Accused sought reduction of his sentence to the one already undergone by him and the State extended its no objection regarding reduction of sentence---High Court observed circumstances such as the offences wherein the accused was convicted falling within the category of offences 'may extend upto'; that the accused claimed himself to be the sole bread earner and that the accused was of young age, which justified reduction in sentence---Sentence of accused was reduced.

Suneil v. The State 2018 PCr.LJ 959 ref.

(b) Criminal trial---

----Sentence quantum of---Scope---Quantum of punishment is an independent aspect of criminal administration of justice which, too, requires to be done keeping the concept of punishment in view---Reference to lodgment of other case(s) in determining questions of guilt/ innocence or even punishment are of no significance.

Muhammad Nadeem Khan along with Irfan Aziz for Appellant.

2021 Y L R 188

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

Sheikh MUHAMMAD ASGHAR and another---Petitioners

Versus

The CHAIRMAIN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD and 2 others---Respondents

Constitutional Petitions Nos. D-5009 and D-1158 of 2019, decided on 29th May, 2020.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iii)(iv)(ix) & 9(xii)---Criminal Procedure Code (V of 1898), Ss. 426 & 497---Constitution of Pakistan, Art.199---Constitutional petition---Suspension of sentence---Tentative assessment of evidence---Accused persons were alleged to have misappropriated an amount of Rs.30.747 million and had caused loss to government exchequer---Trial Court convicted accused persons for having illegal gains, misuse of authority, criminal breach of trust and abetment and were sentenced to imprisonment for five years along with fine---Accused sought suspension of sentence---Validity---Power of appellate Court under S.426(1) Cr.P.C. was not limited and the Court could during pendency of an appeal, suspend sentence of a convict in an appropriate case in its discretion for good and sufficient reasons---Such power of suspension of sentence and grant of bail was not wider than that under S.497, Cr.P.C. and unless it was shown that conviction was based on no evidence or was based on inadmissible evidence and was not ultimately sustainable---Grant of bail under S. 426(1), Cr.P.C. with the consideration of ascertaining question of guilt or innocence on merits through appraisal of evidence was not justified---Bail either under S. 497, Cr.P.C. or 426(1), Cr.P.C. could be allowed only on the basis of tentative assessment of evidence---Accused persons remained on bail during trial and they were taken into custody when judgment was announced, who had not completed substantial period of their conviction---High Court declined to suspend sentences of accused persons during pendency of their appeal as prima facie evidence was against them---Petition was dismissed, in circumstances.

Nazir Ahmed Soomro v. The State 2017 PCr.LJ Note 220; Muhammad Irfan and others v. The State through NAB, and others 2019 YLR 1606; Khan Muhammad Mahar v. The State 2003 SCMR 22; Rehmatullah Baig Alvi v. The State 2004 YLR 46; Rahim Bux Soomro v. The State through Director General (NAB) 2019 MLD 358 and Syed Hur Riahi Gardezi v. NAB and others (C.P. No.D-8669 of 2018) ref.

Makhdoom Javed Hashmi v. The State 2007 SCMR 246; Raja Shamshad Hussain v. Gulraiz Akhtar PLD 2007 SC 564; Manzoor Ahmed v. Fazal Ahmed and 3 others 2013 SCMR 1403 and Muhammad Saleem v. State PLD 2006 SC 483 rel.

Muhammad Farooq for Appellant (in C.P. No. D-5009 of 2019).

Muhammad Anwar Tariq for Petitioners (in C.P. D-1158 of 2019).

R.D. Kalhoro, Special Prosecutor NAB for Respondents.

2021 Y L R 208

[Sindh]

Before Arshad Hussain Khan, J

SHAHID SHAFI---Plaintiff

Versus

Messrs QUICE FOOD INDUSTRIES PUBLIC LIMITED COMPANY, KARACHI and 7 others---Defendants

Civil Suit No. 1163 of 2009, decided on 30th April, 2020.

(a) Administration of justice---

----Principles of adjudication---Party approaching court for seeking relief had to stand on his/her own legs for such purpose, and no benefit of weakness in case of an opposite party could be extended to such party.

M.D. Anwarullah Mazumdar v. Tamina Bibi and others 1971 SCMR 94; Haji Muhammad Sarwar Khan v. Hussain Nawab 1992 CLC 1915 and Mst. Zainab and another v. Majeed Ali and another 1993 SCMR 356 rel.

(b) Damages---

----General damages---Burden and standards of proof----Scope---General damages were required to be established through cogent and reliable evidence and mere feeling of resentment in one's mind was not sufficient to establish general damages---For person claiming mental torture, agony or damage or injury; initial burden would lie on such person to lead evidence on such point---Determination of general damages for mental torture, agony, defamation and financial losses were to be assessed following the "rule of thumb"; which exercise fell within discretionary jurisdiction of the Court, which had to adjudicate upon facts and circumstances of each case.

Mst. Nagina Begum v. Mst. Tahzim Akhtar and others 2009 SCMR 623; Mubashir Ahmad v. Syed Muhammad Shah through Legal Heirs 2011 SCMR 1009 and Dr. M. Raza Zaidi v. Glaxo Wellcome Pakistan Limited, Karachi 2018 MLD 1268 rel.

Shah Muhammad and 2 others v. Dulla and 2 others 2000 SCMR 1588 and Macdonald Layton and Company Pakistan Ltd. v. Uzin Export-Import Foreign Trade Co and others 1996 SCMR 696 ref.

Ch. Abdul Rasheed for Plaintiff.

Abid Naseem for Defendant No.1.

2021 Y L R 238

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh, J

GHULAM NABI through L.Rs. and others---Applicants

Versus

NOOR MUHAMMAD and 9 others---Respondents

Civil Revision Application No. No.149 of 2016, decided on 12th April, 2019.

Specific Relief Act (I of 1877)---

----S. 42--- Suit for declaration---Government land--- Scope--- Plaintiffs filed suit for declaration with the claim that malba of the house constructed on government plot was purchased by their predecessor-in-interest through a sale agreement; that a small private street of 12 feet, which was closed, was in their exclusive use since long and that the respondents forcibly fixed a new gate of their house on its back side in the said street despite objection and protest of the plaintiffs---Suit was concurrently rejected---Validity---Plaintiffs had sought declaration with the consequential relief on the basis of sale agreement that too relating only to the alleged malba on the government plot, which did not confer any right or title in favour of the plaintiffs---Plaintiffs had no right over the government property in terms of S.42 of the Specific Relief Act, 1877---Revision application was dismissed, in circumstances.

Hameedullah Dahri for Applicants.

Nemo for Respondents.

2021 Y L R 244

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

SHAH FAISAL---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeal No. 3 and Confirmation Case No. 1 of 2014, decided on 16th October, 2019.

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

----Ss. 302, 392, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Pakistan Arms Ordinance (XX of 1965), S.13-D---Qatl-i-amd, robbery, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism, possession of unlicensed arms---Appreciation of evidence---Benefit of doubt---Chance witnesses---No justification was available with the witnesses to be present at the place of occurrence---Un-natural conduct of eye-witness---Scope---Accused and co-accused allegedly killed two Police Officials and also took their weapons---Ocular account of the incident had been furnished by three eye-witnesses---Eye-witnesses had no cogent explanation for their presence at the scene of the incident---Said witnesses did not say as to how far away they were when they had seen the accused while firing on the deceased in their car---Witnesses had given no hulia or description of the accused---Conduct of a eye-witness did not tend to accord with natural human conduct since after witnessing the firing incident instead of going to the car to see if either of the deceased required medical assistance or phoned for help he went to the house of one of the deceased to narrate the incident to those who might have been present---One of the eye-witnesses had seen the accused coming on a motorbike and firing at the car in which the deceased were sitting which was in direct contradiction to the other two main eye-witnesses who apparently had seen the accused talking to the deceased when the fire was made and made no mention of any motorbike and that the accused escaped on foot---Said witness had given no hulia or description of the accused and did not take part in the identification parade in respect of the accused for unexplained reasons---Prosecution had not been able to prove its case against the accused beyond reasonable doubt, in circumstances---Appeal against con-viction was allowed, in circumstances.

Zafar Hayat v. The State 1995 SCMR 896; Asghar Ali alias Sabah v. The State 1992 SCMR 2088; Muhammad Ayaz v. State 2011 SCMR 769; State v. Bashir and others PLD 1997 SC 408; Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Nawaz and another v. The State PLD 2005 SC 40; Irfan and another v. Muhammad Yousuf and another 2016 SCMR 1190; Ayub Masih v. The State PLD 2002 SC 1048; Ghulam Mohy Ud Din alias Haji Babu and another v. The State 2014 SCMR 1034; Amjad Shah v. The State PLD 2017 SC 152 and Muhammad Mansha v. The State 2018 SCMR 772 ref.

Ms. Rukhsana Begum v. Sajjid 2017 SCMR 596; Javed Khan v. State 2017 SCMR 524; Muhammed Asif v. State 2017 SCMR 486; Kanwar Anwaar Ali's case PLD 2019 SC 488 and Javed Khan v. State 2017 SCMR 524 rel.

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

----Ss. 302, 392, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Pakistan Arms Ordinance (XX of 1965), S.13-D---Qatl-i-amd, robbery, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism, possession of unlicensed arms---Appreciation of evidence---Benefit of doubt---Oral and medical evidence---Contradictions---Accused and co-accused allegedly killed two Police Officials and also took their weapons---One of the eye-witnesses stated that two persons were talking to deceased/Head Constable who then opened fire on him, which indicated that the firing was made from close range, however, that fact was not supported by the medical evidence as no evidence of any gun powder residue, tattooing or even blackening was found by the Medico Legal Officer on any of the wounds received by either of the deceased---Said fact indicated that the shots were made from atleast three feet away which contradicted oral evidence---Circumstances established that the prosecution had not been able to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Amin Ali and another v. The State 2011 SCMR 323 rel.

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

----Ss. 302, 392, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Pakistan Arms Ordinance (XX of 1965), S.13-D---Qanun-e-Shahadat (10 of 1984), Art.22---Qatl-i-amd, robbery, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism, possession of unlicensed arms---Appreciation of evidence---Benefit of doubt---Test identification parade---Infirmities--- Scope--- Prosecution case was that the accused and co-accused allegedly killed two Police Officials and also took their weapons---In the present case, accused was kept in police custody after his arrest and could have easily been shown to the eye-witnesses---Said defence was taken by the accused in his statements under S.342, Cr.P.C. and under oath---First Information Report was lodged on the very day, the police had already contacted two eye-witnesses and thus for the safe administration of criminal justice, the accused should have been sent to judicial custody until after the identification parade---Record showed that there was an unexplained delay of seven days in carrying out the identification parade after the arrest of the accused which raised doubts as to whether the identification parade could be safely relied upon---No CNICs were taken from the dummies---Reliance could not be placed on the evidence of eye-witness---Circumstances established that the prosecution had not been able to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances. (d) Criminal trial---

----Evidence---Evidence of one accused against another accused---Scope---Such evidence was inadmissible.

(e) Criminal trial---

----Confession---Confession before police---Scope---Such confession was inadmissible in law.

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

----Ss. 302, 392, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Pakistan Arms Ordinance (XX of 1965), S.13-D---Qatl-i-amd, robbery, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism, possession of unlicensed arms---Appreciation of evidence---Benefit of doubt---Recovery of weapons and crime empties--- Reliance--- Scope---Prosecution case was that accused and co-accused killed two Police Officials and also took their weapons, hence the FIR---Record showed that pistols belonging to the deceased were recovered from accused did not appeal to reason that the accused would have retained one of these, as the prosecution case was that the deceased were killed because they were police officers and were fulfilling their lawful duties---Even otherwise there was no evidence of safe custody of the recovered pistols or the empties and if the pistol recovered from the accused belonged to the deceased how could any empties have come from it as there was no evidence that any of the deceased made any fire from any weapon---Even one eye-witness said that the deceased were shot in the car whilst they had their hands up---Prosecution witness in his evidence stated that both the pistols used to murder the deceased were recovered from co-accused and not the accused and that no crime weapon was recovered for the accused--- Circumstances established that the prosecution had not been able to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

(g) Criminal trial---

----Benefit of doubt---Principle---Prosecution must prove its case beyond a reasonable doubt and it is not for the accused to disprove the case against him who might take any and as many defences as he liked to the allegations against him as the onus rests on the prosecution to prove its case beyond a reasonable doubt---If there is any doubt in the prosecution case its benefit must go to the accused.

Muhammed Shah v. State 2010 SCMR 1009 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

(h) 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 the benefit not as a matter of grace and concession but as a matter of right.

Abdul Jabbar v. State 2019 SCMR 129 rel.

Salahuddin Khan Gandapur for Appellant.

Muhammad Iqbal Awan, Deputy Prosecutor General for the State.

2021 Y L R 260

[Sindh]

Before Muhammad Saleem Jessar, J

BILAWAL and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 178 of 2017, decided on 1st October, 2019.

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

----Ss. 376 & 34---Rape, common intention---Appreciation of evidence---Benefit of doubt---Medical Evidence---Scope---Accused were charged for committing rape with the daughter of complainant---Lady Medical Officer examined the victim girl on the same day of alleged incident and deposed that no mark of any violence was seen on all over body; no pain and difficulty in walking; no sign of scratches and bruises were found---Said witness further deposed that after examining the victim girl, she was of the opinion that the victim was not subjected to sexual intercourse---Admittedly, victim girl had changed her clothes which she was wearing at the time of alleged incident---Said clothes were not produced by the police on the same day of examination of the victim girl before the Woman Medical Officer but the same were produced before her on the next day which adversely affected even the report of the Chemical Examiner---Final medical report had mentioned that semen group could not be determined---Without undertaking the process of semen matching, any opinion given by the Medical Officer would not prove the sexual intercourse by the accused persons upon the victim girl---Accused were medically examined and were found that they were potent and capable of sexual assault---Without undertaking the matching process, simply opining that the accused were potent and capable of sexual intercourse was not enough to connect the accused with the alleged commission of rape with the victim girl---Appeal against conviction was allowed, in circumstances.

Salman Akram Raja and another v. Government of Punjab and another 2013 SCMR 203 ref.

Sabir alias Sabir Hussain v. The State 2017 YLR 1270 and Waheed Murad alias Sheikha v. The State 2012 PCr.LJ 437 rel.

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

----Ss. 376 & 34---Rape, common intention---Appreciation of evidence---Benefit of doubt---Contradictions and improvements in the statements of witnesses--- Effect--- Accused were charged for committing rape with the daughter of complainant--- Record showed that the complainant had stated in the FIR that upon cries of the victim girl, when he reached at the spot along with witness, he had seen that accused had caught hold her from the arms whereas co-accused was committing zina with her and on their reaching at the spot, accused ran away---Nothing about the acquitted co-accused was mentioned in the FIR---Complainant, in his deposition, did not say that he himself saw the accused persons committing zina with the victim girl---Complainant deposed that victim girl told him that all the three accused had committed zina with her---First Information Report mentioned that present two appellants had been involved in the commission of the alleged offence, whereas in his deposition, complainant had made improvement and exaggeration by deposition that acquitted accused also committed zina with victim girl---Victim girl in her examination-in-chief stated that her cousin came to the spot and the accused persons seeing him fled away and she put on her clothes then went to her house---Victim girl had, at all, not said a single word about complainant having reached at the spot at the time of alleged incident---Victim had stated about the reaching of witness---Victim had told that her statement was recorded by the police on the next day of the incident, whereas, in fact, her statement was recorded on the fourth day of the incident---Victim, in her examination-in-chief, deposed that accused taped her mouth from her dupatta and in her cross-examination, she stated that when accused persons closed her mouth, she was not able to cry out, however, in her same examination-in-chief she contradicted her own statement by deposing that she was crying due to the said acts of the accused persons and in her cross-examination, she admitted that when she cried due to the incident no one came from the house of the community---Victim in her cross-examination deposed that the accused was also armed with gun but admittedly, in her statement before the police, she did not disclose the fact that accused was armed with gun---Victim had deposed that she along with complainant reached to the police station at about 1.30 p.m. and stayed at police station till night because police was not lodging the case and on the same night, she visited the hospital---Complainant in his cross-examination admitted that they reached to police station at about 2.00 or 2.30 p.m. and remained at the police station till about 10.00 of night as the police was reluctant to lodge the FIR---Allegedly, complainant along with the victim with police letter visited hospital after sunset but the Woman Medical Officer refused to examine the victim by saying that she had only marks of bruises on her neck---Victim was admitted in hospital for the night---Contrary to such statements of the victim girl and the complainant, Lady Medical Officer in her cross-examination deposed that the victim was brought at 4.00 to 5.00 p.m.---Investigating Officer stated that as per his investigation, no zina was committed with victim and the complainant party due to grudge over slapping of victim had lodged the present FIR of rape---Circumstances established that prosecution had failed to prove its case against the appellants beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 376 & 34---Rape, common intention---Appreciation of evidence---Benefit of doubt---Accused was placed similar to the acquitted co-accused---Effect---Accused were charged for committing rape with the daughter of complainant---In the present case, the Trial Court had acquitted one co-accused---Record showed that not only the complainant and witness but even the victim girl had fully implicated the acquitted co-accused in the commission of the alleged offence, despite that the Trial Court in the judgement whereby one co-accused was acquitted had observed that all the prosecution witnesses had not supported in respect of the involvement of co-accused; it was not understandable that despite the evidence of complainant as well as victim and witness, how the Trial Court had made such observation---If the said co-accused was innocent and was falsely involved by the victim girl, complainant as well as witness in the commission of alleged offence of zina, even then in such an eventuality, it would adversely affect the veracity and credibility of the victim girl, complainant as well as witness, meaning thereby that they seemed to be liars/falsifiers---If such was the position, then as to how the testimony coming from the mouth of such liars could be used for convicting the other accused persons---Rule of consistency was applicable in the present case---Circumstances established that prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Mohammad Asif v. The State 2017 SCMR 486; Umar Farooque v. State 2006 SCMR 1605 and Mohammad Akram v. The State 2012 SCMR 440 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---Any doubt arising in the prosecution case must be resolved in favour of 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---Principle---Accused could not be deprived of benefit of doubt merely because there was only one circumstance which created doubt in the prosecution story

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Mubashir Ahmed Mirza for Appellants.

Farman Ali Kanasro, Addl. Prosecutor General, Sindh for the State.

2021 Y L R 281

[Sindh]

Before Salahuddin Panhwar, J

KHUDA BUX CHANDIO---Applicant

Versus

ALTAF BALOCH and 2 others---Respondents

R.A. No.42 of 2012, decided on 7th November, 2019.

Civil Procedure Code (V of 1908)---

----S. 11 & O. XXIII, R. 3---Res judicata, principle of---Scope---Compromise in suit---Compromise decree, not binding on non-signatories---Scope---Suit filed by applicant was dismissed on the ground that the earlier suit had already been decreed against him, therefore, suit filed by applicant fell within the ambit of principle of res judicata---Validity---Two defendants, in the earlier suit, had filed a compromise application and the suit was decreed in terms of compromise against all the defendants---Applicant was not signatory of that compromise application and decree was passed in terms of contents of the compromise application, which was not binding on others---Such like compromise could not attain the status of 'issue decided' which, once decided by a competent court of law, was binding upon all to such extent unless the same was got set aside by third party by resort of legal course---Impugned judgments recorded by the courts below were set aside and the case was remanded to the Trial Court for decision on merits---Revision application was disposed of accordingly.

Muhammad Iqbal v. Khair Din 2014 SCMR 33 and Yousuf Soap Factory v. Deputy Registrar of Trade Mark and others 2003 CLD 614 rel.

Afaq Yousuf for Applicant.

Muhammad Ilyas Warraich for Respondents.

2021 Y L R 288

[Sindh]

Before Muhammad Iqbal Kalhoro and Abdul Mobeen Lakho, JJ

WALI MUHAMMD RAHIMOON and another---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 71, 80, 81 of 2019 and Constitutional Petition No. D-2098 of 2020, decided on 17th June, 2020.

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

----Ss. 365-A, 383, 504, 506-B, 337-A(i) & 34---Sindh Arms Act (V of 2013), S. 23(1)A---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping for ransom, extortion, intentional insult with intent to invoke breach of the peace, criminal intimidation, shajjah-i-khafifah, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused abducted the complainant for ransom, beat him, stripped him, indulged in indecent acts with him, and made recording in their mobile phones and freed him after getting an assurance regarding money---Complainant had stated that he was kidnapped from his car when it stopped at a traffic signal in presence of his driver, who witnessed the incident---Presence of said driver at the spot seemed to be by chance, which could be gathered from his own evidence---Said driver had disclosed that he was driver of the complainant at his village and came to perform duty at city only when his driver at city was on leave---Neither the complainant tried to produce said driver before the police to endorse the story nor he made any such attempt, which was baffling and simply eluded common sense---Fact of complainant availing services of two drivers one at his village and the other at city with his official vehicle at the relevant time had come on record---Complainant did not mention name of specific driver in FIR, therefore, had yielded to vagueness in that connection and had decreased the odds of presence of alleged driver at the spot---Circumstances established that the prosecution had not been able to prove the case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

PLD 2020 SC 61; 2020 SCMR 116; 2008 SCMR 1572; 2019 SCMR 1027; 1993 SCMR 550; 1998 SCMR 570; 1996 SCMR 1553; 2001 SCMR 424; PLD 1995 Lah. 229; 1993 SCMR 585; 1992 SCMR 2088; 1995 SCMR 412; 2010 SCMR 1706; 2011 SCMR 537; 2017 SCMR 1189; PLD 1997 SC 408; 2000 SCMR 683; 1983 SCMR 958; 1983 SCMR 1; 1987 SCMR 1177; 2011 SCMR 1127; 2015 PCr.LJ 391; 2012 SCMR 721; PLD 2011 SC 1135; 2020 PCr.LJ 96; 2006 SCMR 672; 1997 PCr.LJ 1659; PLD 2019 SC 488; 2010 Cr.LJ 74; 2006 PCr.LJ 174; 2009 SCMR 1440; 2013 PCr.LJ 369; 2012 SCMR 2015; PLD 2003 SC 396; PLD 2007 SC 71, PLD 2006 SC 109; 2005 MLD 227; 2007 SCMR 455; 2006 MLD 867; 2007 MLD 372; PLD 2017 Balochistan 76; 2018 YLR 267; 2018 MLD 345; 2018 PCr.LJ 394; 2018 PCr.LJ 1722 and 2018 PCr.LJ 127 ref.

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

----Ss. 365-A, 383, 504, 506-B, 337-A(i) & 34---Sindh Arms Act (V of 2013), S. 23(1)A---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S. 161---Kidnapping for ransom, extortion, intentional insult with intent to invoke breach of the peace, criminal intimidation, shajjah-i-khafifah, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Delay of about seventeen days in recording the statement of witness---Effect---Prosecution case was that the accused abducted the complainant for ransom, beat him, stripped him, indulged in indecent acts with him, and made recording in their mobile phones and freed him after getting an assurance regarding money---Record showed that the driver of the complainant/witness had joined the investigation after a delay of seventeen days of FIR when his statement under S.161, Cr.P.C was recorded---Such delay was entirely unexplained and put a question mark on prosecution story---Appeal against conviction was allowed, in circumstances.

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

----Ss. 365-A, 383, 504, 506-B, 337-A(i) & 34---Sindh Arms Act (V of 2013), S. 23(1)A---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 22---Kidnapping for ransom, extortion, intentional insult with intent to invoke breach of the peace, criminal intimidation, shajjah-i-khafifah, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Test identification parade--- Scope---Prosecution case was that the accused abducted the complainant for ransom, beat him, stripped him, indulged in indecent acts with him, and freed him after recorded pictures in their mobile phones---After getting an assurance regarding the money, they freed the abductee---Record showed that evidence of driver regarding identification of accused before Magistrate was not inspiring confidence--- Memo of identification and evidence of Magistrate reflected that in the process he while distinguishing the accused from dummies had merely disclosed that accused was involved in the crime and did not specify his role---Witness in his deposition, had assigned him role of driving the car on the day, which role even the complainant had not attributed to him---Statement of witness under S.161, Cr.P.C. qua that aspect told yet another story---Witness had asserted that on the day, he had taken the complainant to the hotel at the invitation of accused giving the impression that he was known to him well---Witness when happened to narrate the main incident, he simply referred to availability of five accused in the car, three sitting in and two executing the abduction, without specifying identity and role of anyone---Said variations aggravated by his inability to relate description of accused in his statement under S.161, Cr.P.C. had completely divested the identification parade of its legal value, if any---Circumstances established that the prosecution had not been able to prove the case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 365-A, 383, 504, 506-B, 337-A(i) & 34---Sindh Arms Act (V of 2013), S. 23(1)A---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping for ransom, extortion, intentional insult with intent to invoke breach of the peace, criminal intimidation, shajjah-i-khafifah, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Recovery of pistol on the pointation of accused---Reliance---Scope---Prosecution case was that the accused abducted the complainant for ransom, beat him, stripped him, indulged in indecent acts with him, and made recording in their mobile phones and freed him after getting an assurance regarding money---Unlicensed pistol was recovered on the pointation of co-accused from underground near a Railway Crossing---Said pistol was not established to have been used in the crime, therefore, its concealment underground at a public place was not understandable---Prosecution had not been able to bring on record confidence inspiring evidence on that point to sustain conviction---Prosecution witness had revealed that he had prepared the memo of recovery at the spot which was signed by Head Constable and Police Constable, who had accompanied him to that place and that he had approached the public available to act as mashir but none was ready---Police Constable had contradicted him on those points and had said that no public was available there and that the memo was written by Police Constable as prosecution witness's right hand was disabled---Since said Police Constable was not a part of recovery team, preparation of memo at the spot as claimed by Prosecution witness had come under a serious doubt---Said facts would mean that prosecution had not come up with credible facts on that point rendering entire recovery proceedings suspicious--- Circumstances established that the prosecution had not been able to prove the case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Ashraf Kazi and Muhammad Khalid Khan for appellants (in Spl. Crl. A.T.A. No.71/2019 and for Petitioner (in C.P.D. 2098/2020).

M.M. Aqil Awan and Danish Rasheed for Appellant (in Spl. Crl. A.T.As. Nos. 80 and 81 of 2019).

Muhammad Saleem Mangrio for the Complainant.

Ali Haider Saleem, Addl.PG for the State.

Pir Bux Bhurgari for the Complainant (in Spl. CrI. ATA No.81 of 2019).

2021 Y L R 312

[Sindh (Hyderabad Bench)]

Before Adnan-ul-Karim Memon, J

HABIBULLAH---Applicant

Versus

SESSIONS JUDGE, THARPARKAR @ MITHI and 3 others---Respondents

Criminal Miscellaneous Application No. S-678 of 2018, decided on 30th January, 2019.

Criminal Procedure Code (V of 1898)---

----S. 517---Order for disposal of property regarding which offence committed---Failure to prove ownership of case property---Scope---Accused, after having been acquitted from the charge of cutting and stealing banned trees from the government land, prayed for return of case property/trees---Accused had denied ownership of trees during the trial---Prohibited trees could not be ordered to be released, even though there was no specific provision as it was the cause whereby the crime was committed---Same crime could be repeated if the prohibited wooden trees were returned to the accused---High Court observed that had the accused moved an application for return of case property during the course of trial, the fate of criminal case would have been quite different---Accused had failed to prove his ownership over the case property as no documentary proof was produced to substantiate his right over the subject case property, which he had not claimed in his statement under S.342, Cr.P.C.---Accused could not approbate and reprobate at the same time---Application was dismissed, in circumstances.

Bharat Kumar Suthar for Applicant.

Shahid Ahmed Shaikh, D.P.G. Sindh for Respondents.

2021 Y L R 324

[Sindh]

Before Abdul Maalik Gaddi, J

MUHAMMAD ASIF---Appellant

Versus

TANVEER IQBAL and 2 others---Respondents

Criminal Acquittal Appeal No. 187 of 2017, decided on 13th November, 2019.

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

----S. 489-F---Dishonestly issuing a cheque---Appreciation of evidence---Delayed FIR---Scope---Accused was alleged to have dishonestly issued a cheque which was dishonoured on its presentation---First Information Report was lodged with a delay of about four years---Cheque was allegedly issued by a proprietary concern but the FIR was lodged against the accused---Nothing was available on record to prove that the accused was operating the concerned Bank account and whether signature on the alleged cheque pertained to the accused---Bank Manager was not examined---Prosecution evidence was based on hearsay which could not be relied upon for conviction---Nothing was brought forward which could substantiate that the cheque was issued for fulfillment of any obligation or for re-payment of loan---Appeal was dismissed, in circumstances.

State/Government of Sindh through Advocate General Sindh, Karachi v. Sobharo 1993 SCMR 585 ref.

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

----Art. 129(g)---Withholding best evidence---Scope---Where best evidence is available and the same is kept away, adverse presumption would be drawn.

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

----S. 489-F---Ingredients of S.489-F, P.P.C., detailed.

Following are the essential ingredients of section 489-F, P.P.C.

i) Issuance of cheque;

ii) Such issuance was with dishonest intention;

iii) The purpose of issuance of cheque should be to re-pay a loan or to fulfill an obligation; and

iv) On presentation the cheque was dishonoured.

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

----S. 489-F---Dishonestly issuing a cheque---Scope---Mere issuance of cheque, which was subsequently dis-honoured does not constitute an offence unless it is established that the same was issued with dishonest intention for re-payment of loan or for discharging an obligation.

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

----S. 417---Appeal against acquittal---Scope---High Court would only interfere in acquittal judgment if the same is arbitrary, capricious or against the record.

Ahmed Ali Ghumro for Appellant/Complainant.

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

None is present for Respondent No.1.

2021 Y L R 330

[Sindh]

Before Syed Hassan Azhar Rizvi and Mrs. Kausar Sultana Hussain, JJ

Mrs. FARZANA ZAIDI through her sister and Guardian ad-litim/next friend and 2 others---Petitioners

Versus

Mst. SHIREEN SOHAIL and 3 others---Respondents

Constitution Petition No. D-7346 of 2017, decided on 21st April, 2020.

Civil Procedure Code (V of 1908)---

----O.I, R. 10 & S. 12(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Judgment and decree, setting aside of---Non-impleading of necessary parties---Plaintiff assailed gift deed executed in favour of her bother and sought recovery of possession with mesne profits, which suit was decreed ex-parte in favour of plaintiff, without impleading remaining legal heirs as party---Petitioner was one of the legal heirs of deceased owner of suit property who sought setting aside of judgment and decree under S.12(2), C.P.C., passed in favour of plaintiff, which application was concurrently dismissed by Trial Court and Lower Appellate Court---Validity---Matter required evidence and legally the suit could not be filed against only one occupant of the subject property by ignoring other occupants, if they were also residing in the subject house---Respondent had objected judgment and decree in question fraudulently and collusively by practicing fraud---High Court in exercise of Constitutional jurisdiction set aside orders passed by two courts below and remanded the matter to Trial Court for decision afresh---High Court impleaded remaining occupants of subject property as defendants in the suit---High Court directed Trial Court to provide chance to all defendants to contest the matter and had also framed two additional issues---Constitutional petition was allowed accordingly.

Abdul Qadir Khan along with Ms. Ghazala for Petitioners.

Javed Anwar for Respondents Nos.1 and 3.

Ashiq Ali for Respondent No.2.

Abu Jalil Zubaidi, Asstt. Advocate General, Sindh.

2021 Y L R 338

[Sindh]

Before Mrs. Rashida Asad, J

INSAF and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos. 1820, 1821 and 1878 of 2019, decided on 6th March, 2020.

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

----S. 497---Penal Code (XLV of 1860), S. 395---Dacoity---Bail, refusal of---Recovery of snatched mobile phones---Effect---Prosecution case was that when the train stopped for some reason, the accused persons entered in the train and snatched cash, mobile phones, etc from the complainants---Investigating Officer had obtained call data record of the snatched mobile phones which showed that the SIMs registered in the name of certain accused persons were used in the said phones---Other accused persons were found to be in possession of the snatched mobile phones---Accused persons had also produced the robbed cash---Accused persons did not deny the registration of SIMs in their names---Complainants were not on inimical terms with the accused persons---Sufficient material was available on record to connect the accused persons with the commission of alleged offences---Delay in lodging FIRs was plausibly explained by the complainants---Delay, even otherwise, was not sufficient to grant bail unless the same was supported by other circumstances---Applications for grant of bail were dismissed.

Mazhar Iqbal v. The State and others 2010 SCMR 1171 rel.

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

----S.497---Bail---Delayed FIR---Scope---Delay in lodging FIR is not sufficient to grant bail unless the same is supported by other circumstances.

Mazhar Iqbal v. The State and others 2010 SCMR 1171 rel.

Touheed Hussain for Applicants Nos. 1 and 2.

Ghulam Rasool Shaikh for Applicant No.3.

Ch. Waseem Akhtar Assistant Attorney General for Pakistan along with Inspector Legal/Prosecutor Railway Attaullah SIP Abdul Razzak for Respondent.

Hussain Bux Baloch, Additional Prosecutor General Sindh for the State.

Syed Samiullah Shah for the Complainant.

2021 Y L R 367

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

ABDUL JABBAR and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No. S-157 of 2019, decided on 6th March, 2019.

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

----S. 498---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Pre-arrest bail, refusal of---Allegations against the accused were that the complainant sold out his land and accused issued a cross cheque for an amount of Rs.74,00,000/- which was not cashed---Accused had admitted the sale transaction and issuance of cheque in favour of the complainant which was dishonoured by the concerned Bank on its presentation due to "insufficient funds" and had caused huge monetary loss to the complainant---Accused had also admitted that they got stopped the payment on the ground that complainant had given the possession of the land less than the area shown in the agreement and in that regard they had also filed a civil suit but there was no denial of execution of sale agreement and issuance of cheque by the accused---Appraisal of the record reflected that accused were directly involved in the case---Delay in lodging of FIR had been plausibly explained by the complainant that he was kept on false hopes by the accused, thus, such delay could not be considered as fatal to prosecution case---Ingredients of S.489-F, P.P.C. were satisfied---Trial Court would be able to conclude whether the cheque was issued in fulfilment of an obligation or otherwise---Prima facie, there appeared reasonable grounds to believe that accused were connected with the offence with which they were charged, hence, they were not entitled for concession of pre-arrest bail---Interim bail granted to the accused was recalled by the High Court and the bail application was dismissed, in circumstances.

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

----S. 497---Bail---Evidence, assessment of---Observations made in bail order were tentative in nature and thus would not prejudice the case of either party in trial.

Niaz Muhammad Ghanghro for Applicants.

Parkash Kumar for the Complainant along with Complainant.

2021 Y L R 380

[Sindh]

Before Abdul Maalik Gaddi, J

HAMZA ALAM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 471 of 2017, decided on 19th September, 2019.

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

----S. 376---Criminal Procedure Code (V of 1898), Ss. 164 & 265-J---Qanun-e-Shahadat (10 of 1984), Art. 121---Rape---Appreciation of evidence---Delayed FIR---Non-production of witnesses during trial---Scope---Accused was alleged to have committed sexual intercourse with a minor of about six and a half years---Statement of victim was recorded before Magistrate under S.164, Cr.P.C. in the presence of accused and she had implicated the accused as the culprit---Victim was cross-examined by the counsel for the accused at length but her testimony was not shattered---Statement of mother of victim was also recorded on the same day under S.164, Cr.P.C., who also supported the contents of FIR---Delay of two days in lodging the FIR was not fatal as in such like cases the people ever remained under fear, coercion and compulsion and not dared to disclose the facts to their elders or people of community---Burden to prove alleged political enmity between the parties was on the accused but he did not produce any convincing evidence to prove the enmity---Non-production of victim and her mother during the trial to give evidence was not fatal for the reason that their statements under S.164, Cr.P.C., were recorded by Magistrate and even an opportunity of cross-examination was also given to the accused---Section 265-J, Cr.P.C., provided that the statement of a witness if duly recorded under S.164, Cr.P.C., if it was made in the presence of accused and if he had notice of it and was given an opportunity of cross-examining the witness, might, in the discretion of the court, be treated as evidence in the case for all purposes subject to the provisions of law of evidence---Appeal, being devoid of merit, was dismissed, in circumstances.

Muhammad Rafiq and others v. The State and others 2010 SCMR 385; Imtiaz alias Taj v. The State and others 2018 SCMR 344; Muhammad Siddique v. The State 2018 SCMR 71; Nadir Shah v. The State and others 2012 PCr.LJ 588; Kashif Ikram v. The State 2005 PCr.LJ 138 and PLJ 2005 Sh.C. (AJ&K) 75 ref.

Ashiq Ali and another v. The State and another 2007 PCr.LJ 989 rel.

(b) Criminal trial---

----Delayed FIR---Scope---Each case has its own merits and circumstances, therefore, delay in lodging FIR in every criminal case cannot be presumed to be fatal for the prosecution because mere delay in lodgment of FIR alone is not sufficient to give its benefit to the accused.

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

----Ss. 265-J & 164---Power to record statements and confessions---Scope---Section 265-J, Cr.P.C., provides that the statement of a witness if duly recorded under S.164, Cr.P.C., and was made in the presence of accused and he had notice of it and was given an opportunity of cross-examining the witness, may, in the discretion of the court, if such witness produced and examined, be treated as evidence in the case for all purposes subject to the provisions of law of evidence.

Ashiq Ali and another v. The State and another 2007 PCr.LJ 989 rel.

Syed Junaid Alam Rizvi for Appellant.

Abrar Ali Khichi, Additional Prosecutor General, Sindh for Respondent.

2021 Y L R 402

[Sindh]

Before Agha Faisal, J

MUHAMMAD SAJID HUSSAIN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 524 of 2020, decided on 19th May, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 376 & 511---Rape, attempt to commit offence punishable with imprisonment for life or a shorter term---Bail, refusal of---Accused allegedly attempted to rape a four year old girl---Statement of the victim denoted that the accused exposed his genitalia, denuded her, subjected her to sexual assault and then attempted to rape her---Initial medical examination, conducted on the same day revealed redness of the genitals (labia majora and labia minora) of the victim---Statement of a witness stipulated that he had seen the victim bawling while running away from the accused house---Statements of the mother of the victim, independent witnesses and Police personnel, available on file, corroborated the assertion of the offence against the accused---No apparent reason to give weightage to the accused averment that the allegation against him was actuated by the intent of the victim's parents to blackmail him---Accused remained unable to place any cogent reasoning as to why the parents of a four year old girl would bring ignominy to their child---Accused had been unable to set forth a fit case for grant of post-arrest bail, hence, the same was dismissed.

Abdul Razzaq v. The State 1990 MLD 184 and Maqbool Hussain v. The State 1973 SCMR 488 rel.

M. Shafiq A. Khosa for Applicant/ Accused.

Syed Meeral Shah Bukhari Additional Prosecutor General for the State.

2021 Y L R 409

[Sindh]

Before Nazar Akbar, J

MUHAMMAD RAMZAN through Superintendent of Central Jail, Karachi---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 747 of 2019, decided on 2nd July, 2020.

Penal Code (XLV of 1860)---

---Ss. 320, 107 & 114---Provincial Motor Vehicles Ordinance (XIX of 1965), Ss. 3 & 5---Qatl-i-khata by rash or negligent driving--- Abetment--- Scope--- Abettor present when offence is committed---Prohibition on driving without licence---Scope---Accused, while driving a water tanker, hit an unknown lady who received injuries and expired on the spot---Driving licence of accused was found to be fake and bogus---Investigating Officer of the case was required to have included the owner of the vehicle in investigation as co-accused for allowing the vehicle to be driven by a person who was not holding a valid driving licence or whose licence was not genuine---Owner of the vehicle was an abettor in terms of S.107, P.P.C. and his case fell under S.114, P.P.C.---Investigating Officer was directed to take action against owner of the vehicle and the prosecution was directed to expeditiously complete the trial against the owner as co-accused---Appeal was adjourned pending action against the owner of the vehicle.

Atta Muhammad v. The State 2005 PCr.LJ 1648 rel.

Hassan Ali Sheikh for Appellant.

Ms. Seema Zaidi, Additional P.G. for the State.

Rao Aslam, S.S.P. Investigation, District West, Karachi along with A.S.I. Zafar Iqbal/I.O. of the case.

Ms. Anjum Faridi for the owner of the vehicle.

2021 Y L R 440

[Sindh (Sukkur Bench)]

Before Adnan Iqbal Chaudhry, J

ABDUL MAJEED---Applicant

Versus

AMJAD ALI---Respondent

Civil Revision Application No. S-198 of 2011, decided on 19th October, 2020.

(a) Islamic law---

----Pre-emption---Suit for pre-emption filed by plaintiff was concurrently dismissed---Validity---Observation in the impugned judgments that a commercial property was exempt from pre-emption was erroneous---Plaintiff had gone over to the suit shop with the intent to invoke the right of pre-emption as he had prior knowledge of the sale---Talb-i-mawathibat, in circumstances, could not be said to be a "jumping demand"---Impugned judgments and decrees did not call for interference---Revision application was dismissed.

M.R. Sons v. Junaid Associates (Pvt.) Ltd. PLD 1990 Kar. 387 and Abdul Rahim Khan v. Asif Ali Khan PLD 2001 SC 137 not fol.

Government of NWFP v. Said Kamal Shah PLD 1986 SC 360; Muhammad Shabbir Ahmad Khan v. Government of Punjab PLD 1994 SC 1 and Rana Muhammad Tufail v. Munir Ahmed PLD 2001 SC 13 rel.

(b) Islamic law---

----Pre-emption---If talb-i-mawathibat is not made immediately on acquiring knowledge of the sale then it will be deemed that the shaafi has foregone his right of pre-emption.

(c) Islamic law---

----Pre-emption---Right of pre-emption being a feeble right, the pre-emptor is to be put to strict proof as to the making and the observance of the requisite talbs.

Sarfraz A. Akhund for Applicant.

A. M. Mobeen Khan for Respondent.

2021 Y L R 452

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar, J

SAMIULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-145 of 2018, decided on 18th November, 2019.

(a) Sindh Arms Act (V of 2013)---

----S. 23---Criminal Procedure Code (V of 1898), S. 103---Unlicensed possession of arms---Search to be made in presence of witnesses---Acquittal in main case---Scope---Prosecution case was that the accused was arrested in crime under Ss. 324, 353, 147, 148 & 149, P.P.C.; that he was found in possession of 74 rods and 2 pieces of charas which on weighing were found to be of 1100 grams and that during his search an unlicensed .30 bore pistol along with empty magazine was also recovered from his possession---Accused had been acquitted in the main cases and the present case was offshoot of those cases, therefore, the accused deserved to be acquitted in the present case also---Alleged recovery was made from the accused in daylight hours from a busy area but no efforts were made to associate independent persons of the locality to witness the arrest and recovery proceedings---Recovery of alleged weapon from the accused had lost its evidentiary value, in circumstances--- Appeal against conviction was allowed.

Yasir Chaudhry v. The State 2012 MLD 1315 rel.

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

----S. 103---Search to be made in presence of witnesses---Purpose---Scope---Purpose of associating independent mashirs of the locality is to ensure transparency of the recovery process---Officials making searches, recoveries and arrests are reasonably required to associate private persons more particularly in those cases in which presence of private persons is admitted, more particularly where there is prior information regarding effecting any recovery from a specific place, so as to lend credence to such actions and to restore public confidence.

State v. Bashir and others PLD 1997 SC 408 and Yameen Kumhar v. The State PLD 1990 Kar. 275 rel.

(c) Criminal trial---

----Benefit of doubt---Scope---Conviction must be based and founded on unimpeachable evidence and certainty of guilt---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.

Naeemuddin Sahito for Appellant.

Shahzado Saleem Nahoyoon, D.P.G, Sindh for the State.

2021 Y L R 462

[Sindh]

Before Yousuf Ali Sayeed, J

MUHAMMAD RIAZ and 6 others---Plaintiffs

Versus

PROVINCE OF SINDH through Chief Secretary and 17 others---Defendants

Suit Nos. 2378 of 2015 and 2253 of 2016, decided on 20th January, 2020.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Suit for declaration and permanent injunction---Temporary injunction, grant of---Ingredients---Plaintiffs had registered sale deeds and entries in their favour in the revenue record---Suit property was in the possession of plaintiffs---Plaintiffs had prima facie case and balance of convenience in their favour---Application for grant of temporary injunction was allowed, in circumstances.

Abrar Hassan for Plaintiffs (in Suit No. 2378 of 2015).

Ghulam Abbas for Defendant No.3 (in Suit No. 2378 of 2015)..

Haider Waheed for Defendant No.13 (in Suit No. 2378 of 2015).

Haider Waheed for Plaintiff (in Suit No. 2253 of 2016).

Ghulam Abbas for Defendant No.2 (in Suit No. 2253 of 2016).

Abrar Hassan for Defendants Nos. 11 to 17 (in Suit No. 2253 of 2016).

2021 Y L R 550

[Sindh (Hyderabad Bench)]

Before Irshad Ali Shah and Amjad Ali Sahito, JJ

NIAZ HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-166 of 2019, decided on 27th November, 2019.

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

----Ss. 9(c), 25 & 29---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotics---Mode of making searches and arrest---Search to be made in presence of witnesses---Presumption from possession of illicit articles---Dispatch of sample for test or analysts---Scope---Accused was alleged to have been found in possession of 3040 grams of charas---Entire charas was sealed on the spot for sending the same to the Chemical Examiner---Case property was kept in malkhana on the same day---Police officials were nominated as mashirs due to non-availability of private persons---Writing Head Constable (WHC) had confirmed that he had kept case property in the malkhana and recorded such entry in the property register, which was duly produced---Sample-bearer had supported the prosecution case by stating that he was given the case property for depositing in the office of Chemical Examiner under roznamcha entry, which was also produced---Minor delay in sending the sample parcel to the office of Chemical Examiner was not fatal for the prosecution case as the rules to that effect were directory and not mandatory---Prosecution had discharged its initial onus while the accused had failed to discharge his burden in terms of S.29 of Control of Narcotic Substances Act, 1997---Appeal against conviction was dismissed, in circumstances.

Agha Qais v. The State 2009 PCr.LJ 1337; 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 distinguished.

Muhammad Sarfraz v. The State 2017 SCMR 1874 ref.

The State/ANF v. Muhammad Arshad 2017 SCMR 283 and Salah-ud-Din v. The State 2010 SCMR 1962 rel.

(b) Criminal trial---

----Complainant acting as Investigating Officer---Scope---No bar exists in the law for a complainant to act as investigation officer in the case.

The State v. Zaffar 2008 SCMR 1254 rel.

(c) 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---Applicability of S.103, Cr.P.C., in the narcotics cases has been excluded and non-association of any private person as witness is not a serious defect to vitiate the conviction.

(d) Criminal trial---

----Witness---Police witnesses---Scope---Police officials are competent witnesses and their evidence cannot be discarded only for the reason that they are police officials---Prosecution witnesses being police officials alone cannot be considered as a valid reason to discard their statements/evidence.

Zaffar v. The State 2008 SCMR 1254 rel.

(e) Criminal trial---

---Witness---Official witness---Scope---Status of one as an official would not alone 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.

Farooq v. The State 2008 SCMR 970 ref.

Ms. Saima Agha for Appellant.

Ms. Rameshan Odh, A.P.G. for Respondent.

2021 Y L R 578

[Sindh]

Before Fahim Ahmed Siddiqui, J

KHURSHEED BEGUM and 4 others---Applicants

Versus

FATEH MUHAMMAD KHAN BAJARANI and 2 others---Respondents

Judicial Miscellaneous No. 72 of 2014 in Civil Suit No. 567 of 2014, decided on 11th March, 2019.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Specific Relief Act (I of 1877), S. 12---Contract Act (IX of 1872), S. 201---Registration Act (XVI of 1908), S. 17---Qanun-e-Shahadat (10 of 1984), Art. 17---Suit for specific performance of agreement to sell---Sale agreement on behalf of attorney after death of principal---Effect---Compromise decree---Fraud and misrepresentation---Decree, setting aside of---Suit was decreed on the basis of compromise within a fortnight period from its institution---General Power of Attorney was an unregistered document in which signatures of witnesses were missing and no stamp duty was paid on the same---Sale agreement had been executed on behalf of attorney in favour of defendant after death of principal---Plaintiff entered into a sale agreement with the defendant on the basis of unregistered deed of power of attorney---Sale agreement was dubious and suit was a collusive one---General power of attorney should have been registered and no sanctity was attached to unregistered attorney deed---Document which proposed to create financial or future obligation should be witnessed by at least two male witnesses---Impugned judgment and decree had been obtained through fraud and misrepresentation and legal heirs had been deprived of their valuable rights---Application for setting aside of compromise decree was allowed, in circumstances.

Maqsood Ahmed and others v. Salman Ali PLD 2003 SC 31; Siraj Din and others v. Ghulam Nabi and others PLD 2003 SC 159; John Paul v. Irshad Ali and others PLD 1997 Kar. 267 and Muhammad Rafique through LRs v. Meraj Din through LRs 2006 YLR 1453(2) ref.

Muhammad Ali Zubair v. Sabira Khatoon 2017 YLR 138 and Zafarul Islam v. Mrs. Azra Malik PLD 1991 Kar. 377 rel.

Abdul Kadir Khan and Muhammad Abu Baka Khalil for Applicants.

Nemo for Respondents.

2021 Y L R 613

[Sindh]

Before Agha Faisal, J

IRAN CENTRAL IRON ORE COMPANY through Authorized Representative---Plaintiff

Versus

PAKISTAN STEEL MILLS CORPORATION (PRIVATE) LIMITED---Defendant

Suit No. 2710 of 2017, decided on 24th February, 2020.

Arbitration Act (X of 1940)---

----Ss. 14(2), 20, 30 & 33---Sindh Chief Court Rules (O.S.), R. 282(1)---Arbitration--- Award--- Objections---Plaintiff was aggrieved of non-payment of consideration amount for goods supplied to defendant under the contract between the parties---Plea raised by defendant was that (currency) exchange rate stipulation was unmerited as the appropriate exchange rate was to be that prevailing rate upon the date that the relevant amounts had become due---Validity---If objection of defendant was to be sustained, the same would amount to sanction unjust enrichment---Contract and obligation emanating therefrom was not denied and it was also admitted that such liability was denominated in foreign exchange---Payment of adjudicated liability, to plaintiff in Pakistan currency was not demonstrated to be barred by any sanction, foreign or domestic---Such objection was circumscribed with respect to applicable rate of exchange---Award was well reasoned and was predicated upon due consideration of evidence---Defendant failed to demonstrate any infirmity with respect to the Award, within the ambit of S.30 of Arbitration Act, 1940, or otherwise---High Court dismissed objections against award raised by defendant---Award was made rule of the Court, in circumstances.

Gerry's International (Private) Limited v. Aeroflot Russian International Airlines 2018 SCMR 662; Chaudhry Qaiser Mahmood v. Province of Punjab and another 2012 SCMR 1606; PLD 2011 SC 506; PLD 2006 SC 169; PLD 2003 SC 301; PLD 1996 SC 108; 1984 SCMR 597; 2014 SCMR 1268; PLD 1987 SC 393; Terni SPA v. PECO Limited 1992 SCMR 2238; Sandoz Limited v. Federation of Pakistan 1995 SCMR 1431 and Maulana Abdul Haque Baloch and others v. Government of Balochistan and others PLD 2013 SC 641 ref.

Furkan Ali for Plaintiff.

Zeeshan Adhi for Defendant.

2021 Y L R 629

[Sindh]

Before Abdul Mobeen Lakho, J

FAIZAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 18 of 2020, decided on 5th March, 2020.

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

----S. 497---Penal Code (XLV of 1860), S. 395--- Dacoity--- Bail, grant of---Scope---Dismissal of application for identification parade---Further inquiry---Scope---Accused along with others was alleged to have snatched mobile phone and cash---Accused was not named in the FIR---No incriminating material was recovered on the pointation of accused---Application for identification parade which was essential was dismissed on the ground that the Investigating Officer had not taken precautionary measures for hiding the identity of the accused and had brought the accused for identification parade with open face---Accused had made out a case for further inquiry within the meaning of sub-section (2) of S.497, Cr.P.C.---Petition for grant of bail was allowed, in circumstances.

Kanwar Anwar Ali, Special Judicial Magistrate's case PLD 2019 SC 488 ref.

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

----S. 497---Bail---Minimum sentence to be considered---Scope---Court, while examining the question of bail, has to consider the minimum aspect of sentence provided for the alleged offence in the Schedule.

Shoukat Iqbal for Applicant.

Abdullah Rajput, Deputy Public Prosecutor for Respondent.

2021 Y L R 651

[Sindh]

Before Irfan Saadat Khan and Fahim Ahmed Siddiqui, JJ

Dr. MAZHAR MAJID, M.D. through Attorney---Appellant

Versus

ATHER MAJID and 2 others---Respondents

High Court Appeal No. 305 of 2019, decided on 23rd October, 2019.

Civil Procedure Code (V of 1908)--

----S. 12(2)---Bar to further suit---Scope---Appellant assailed the dismissal of his application under S.12(2), C.P.C. by the Single Judge of High Court---Parties had obtained decree on the basis of consent/compromise---Validity---Decree obtained on the basis of consent/ compromise was not challengable until and unless the same was proved to be obtained by way of fraud and misrepresentation---No occasion either of playing fraud or that of mis-representation was pointed out---Case was duly represented by the attorney of the appellant---No fraud could have been played when all the parties had entered into a compromise by filing a proper application and then duly appearing before the Single Judge in support of their compromise application---Appellant had not even remotely suggested that the attorney appearing for him had misrepresented him so as to prefer the application under S.12(2), C.P.C.---Neither was it proved that the contents of the application for compromise were unlawful or void nor was it proved that the said application in any way lacked legal sanctity---High Court appeal, being bereft of merit and misconceived, was dismissed in limine.

Karachi Development Authority v. Messrs Makhdoom Bilawal Cooperative Housing Society and others 2001 SCMR 1277 and Zaibun Nisa Habib v. Alley Rasool 1989 SCMR 416 rel.

Syed Maqbool H. Shah for Appellant.

2021 Y L R 657

[Sindh]

Before Yousuf Ali Sayeed, J

MUHAMMAD RAFIQ---Plaintiff

Versus

Messrs ARD ASSOCIATES and 10 others---Defendants

Civil Suit No. 750 of 2014, decided on 25th September, 2019.

Partnership Act (IX of 1932)---

----S. 42---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for dissolution of partnership---Temporary injunction, grant of---Scope---Plaintiff through present application had sought direction to restrain the defendants from alienating, encumbering or disposing of the vacant land of the firm---Final relief sought in the plaint was not in consonance with the application for temporary injunction---No provision in the partnership deed existed to fetter the rights of the parties to deal in their land which remained vested with them---Plaintiff had executed sale deed with regard to land of firm and he could not seek injunction against the defendants in relation to said land---Plaintiff being party to the transaction in respect of firm's land could not seek direction to restrain the defendants from further transaction with regard to said land on the basis of his claim that he had not received his full share of transaction---Plaintiff had right to recover shortfall from the defendants being party who had allegedly withheld his share---Plaintiff had failed to establish a prima facie case for temporary injunction other than remaining land of the firm---Application for temporary injunction was disposed of, accordingly.

Ms. Arjumand Khan for Plaintiff.

Ch. Atif Rafique for Defendant No.2.

Sajid Latif for Defendant No.4.

Rafiq Ahmed Kalwar for Defendants Nos. 5 to 7.

2021 Y L R 684

[Sindh (Larkana Bench)]

Before Naimatullah Phulpoto and Zulfiqar Ali Sangi, JJ

DHANI BUX JAGIRANI---Appellant

Versus

MANZOOR KALHORO and 8 others---Respondents

Criminal Acquittal Appeal No. D-46 of 2019, decided on 14th October, 2020.

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

----Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon---Unlawful assembly---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Contradiction and improvements---Scope---Accused were charged for committing murder of nephew of the complainant by firing---Motive behind the occurrence was a dispute over landed property---Complainant deposed that on 09.4.2013, he along with others were present at their lands situated adjacent to their house when about 6.30 p.m. accused persons came there and asked his nephew to have accompanied for a while as they had a piece of work---First Information Report had mentioned that the complainant along with deceased and others were available at their Otaque when at about 6:00 p.m. accused persons and two unidentified persons came over there and asked deceased to have accompanied them for some work---Said fact was not only contradiction but it appeared that complainant had improved his case which created very serious doubt---Admittedly, there was no eye-witness of the incident of the murder of the deceased---Complainant and the witness deposed that when they reached at the place where dead body of deceased was lying, police at police station concerned also reached there but there was no evidence which supported the fact that police also reached at the time when complainant and witnesses first time saw the deceased at the place where dead body of the deceased was lying---Appeal was dismissed accordingly.

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

----Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon---unlawful assembly---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Contradiction in the statements of witnesses--- Scope---Accused were charged for committing murder of nephew of the complainant by firing---Witness/corpse bearer stated that he brought the dead body at 12:30 p.m. and the Medical Officer came at hospital at 01:00 p.m. then the evidence of the Medical Officer would become untrue because as per his evidence, he had started the post-mortem of the deceased at 11:30 a.m. and finished at 1:00 p.m.---Therefore, it could be said that the witness/corpse bearer was not available at hospital---Said contradiction also made the case doubtful---Appeal was dismissed accordingly.

(c) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance created doubt in the case of prosecution, it would go in favour of accused---Benefit of doubt would be extended to the accused not as a matter of grace but as a matter of right.

Tariq Pervaiz v. The State 1995 SCMR 1345; Muhammad Akram v. The State 2009 SCMR 230 and Muhammad Zafar and another v. Rustam and others 2017 SCMR 1639 rel.

(d) Appeal against acquittal---

----Double presumption of innocence---Interference---Appeal against acquittal had distinctive features and the approach to deal with the appeal against conviction was distinguishable from appeal against acquittal, because presumption of double innocence was attached in the latter case---Order of acquittal could only be interfered with when on the face of it same was found as capricious, perverse, arbitrary or foolish in nature.

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.

Habibullah G. Ghouri for Appellant.

Muhammad Noonari, D.P.G. for the State.

2021 Y L R 692

[Sindh]

Before Mohammad Ali Mazhar and Agha Faisal, JJ

Messrs GUINAULT SA PA ORLEANS SOLOGNE through Authorized Representative in Pakistan---Petitioner

Versus

FEDERATION OF PAKISTAN through Aviation Division, Islamabad and 3 others---Respondents

C.P. No. D-2531 of 2019, decided on 24th December, 2019.

Public Procurement Rules, 2004---

----R.26---Tender proceedings---Failure to participate---Petitioner company did not participate in tender process and sought setting aside the process on the plea that it was the lowest evaluated bidder in respect of an earlier tender inquiry---Validity---Tender in question was floated on 29-3-2019 and bids were required to be submitted by 8-5-2019---Instead of participating in tender process, petitioner instituted Constitutional petition before High Court on 13-4-2019 seeking to vitiate tender process and requiring to declare successful bidder in respect of tender process cancelled more than two months thereto before---High Court declined to interfere in tender process as no arbitrariness and/or illegality was demonstrated in respect of tender process---Constitutional petition was dismissed in circumstances.

2015 PLC 45; 2015 CLD 1257; PLD 2011 SC 44; PLD 2007 SC 642; Suo Motu Case 13 of 2009 PLD 2011 SC 619; Sindh Petroleum and CNG Dealers Association and others v. Federation of Pakistan and others 2020 CLC 851; Collector of Sales Tax Gujranwala and others v. Super Asia Mohammad Din and Sons and others 2017 SCMR 1427; A.P.Moller Maersk v. Commissioner Inland Revenue and others C.P. D-7097 of 2018; Crown Forest Industries Ltd. v. Canada (1995) 2 SCR 802; AKD Investment Management Limited and others v. JS Investments Limited and others 2020 CLD 596; Zahid Iqbal v. Hafiz Muhammad Adnan and others 2016 SCMR 430; Nadeem Ahmed Advocate v. Federation of Pakistan 2013 SCMR 1062; Amanullah Khan v. Chief Secretary NWFP and others 1995 SCMR 1856; Kitchen Cuisine (Private) Limited v. Pakistan International Airlines Corporation and others PLD 2016 Lah. 412; Crescent Steel and Allied Products Limited v. Sui Southern Gas Company Limited 2015 CLC 478; Pakistan Gas Port Limited v. Sui Southern Gas Company Limited and others PLD 2016 Kar. 207; Muhammad Jawed v. First Women Bank Limited and others 2020 CLC 254; Muhammad Farooq v. Silk Bank Limited and others (First Appeal 50 of 2018); Muhammad Khalil v. Faisal M.B. Corporation and others 2019 SCMR 321; Mandokhail Brothers Commercial Trading and Government Contractor v. Chairman Civil Aviation and others 2017 CLC 221; Babu Parvez Qureshi v. Settlement Commissioner Multan and Bahawalpur Divisions and others 1997 SCMR 337; Munshi Muhammad and another v. Faizanul Haq and another 1971 SCMR 533; Javaid Iqbal Abbasi and Company v. Province of Punjab and others 1996 SCMR 1433 and Otsuka Pakistan Limited v. Province of Sindh and others 2020 MLD 185 ref.

Abdul Moiz Jafferi for Petitioner.

Kafeel Ahmed Abbasi Deputy Attorney General for Respondents Nos. 1 and 2.

Jawad Sarwana and Bilal Channa for Respondents Nos. 3 and 4.

2021 Y L R 710

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi, J

GHULAM UMER GOPANG---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-55 of 2020, decided on 10th November, 2020.

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

----Ss. 302, 114, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Accused was charged that he along with his co-accused persons committed murder of the husband of complainant by firing---Complainant and her daughter being eye-witnesses had furnished the ocular account---Complainant had not given the name of accused in the FIR nor gave description of said unknown person, however, she, after the lapse of eleven days recorded her further statement in which disclosed the name of accused by specifically stating that she came to know that accused was involved in the offence with other accused person---Complainant had not disclosed the source of said information that how she came to know, and when she came to know that said unknown person was the accused---Same position was of the evidence of eye-witness/daughter of the deceased---Evidence of said witness and her statements recorded under S.161, Cr.P.C., transpired that the name of accused was not mentioned nor the description of said unknown person was mentioned---However, said witness also after the lapse of eleven days in her further statement disclosed the name of accused by specifically stating that she came to known that the present accused was involved in the offence with other accused persons---Eye-witness had not disclosed the source of information as to how, from where and when she came to know, that said unknown person was the accused---None of the witnesses stated a single word in the FIR, statement under S.161, Cr.P.C. or in the further statement recorded after eleven days of the incident so also during their evidence recorded before the Trial Court that the present accused shared common intention with the co-accused for committing murder of the deceased---Even no role had been assigned against the accused---Presence of the accused at the time and place of occurrence as alleged by the prosecution was highly doubtful, in circumstances---Prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 114, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Identification of accused in court---Scope---Accused was charged that he along with his co-accused persons committed murder of the husband of complainant by firing---Record showed that no identification parade of the accused was conducted---Identification of accused in the court by the witnesses at the time of recording evidence without other corroborative piece of evidence was a weak type of identification---In the present case, the accused was previously known to the witnesses and was their relative, residing in the same muhalla, having inimical terms with the complainant party as had been admitted by the witnesses---Accused was not named in the FIR nor in the statements under S.161, Cr.P.C., though the same were recorded on the next day of the incident---Prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal was allowed and accused was 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; Javed Khan alias Bacha and another v. The State and another 2017 SCMR 524 and Hakeem and others v. The State 2017 SCMR 1546 rel.

(c) 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.

Habibullah G. Ghouri for Appellant.

Irfan Badar Abbasi for the Complainant.

Muhammad Noonari, Deputy Prosecutor General for the State.

2021 Y L R 732

[Sindh (Larkana Bench)]

Before Khadim Hussain M. Shaikh, J

MOHAMMAD HANEEF---Appellant

Versus

BARKAT and 2 others---Respondents

Criminal Acquittal Appeal No. S-11 of 2017, decided on 8th November, 2019.

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

----Ss. 3, 4 & 9---Criminal Procedure Code (V of 1898), S. 417(2)---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Illegal dispossession---Complainant had alleged that about three months prior to filing the complaint, accused persons illegally occupied one acre of his land---Record showed that no date and time of the alleged incident was either mentioned in the subject complaint filed under S.3(2) of Illegal Dispossession Act, 2005 or in the evidence of complainant and his witnesses---Even descriptions and boundaries of the subject land measuring 1-0 acres had not been shown in the complaint, which were essential for the identity of the subject area---Complainant had not produced any document to prove that he was owner of the subject land and he ever remained in possession thereof---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 3, 4 & 9---Criminal Procedure Code (V of 1898), S. 417(2)---Appreciation of evidence---Appeal against acquittal---Illegal dispossession---Contradictions in the statements of witnesses---Scope---Complainant had alleged that about three months prior to filing the complaint, accused persons illegally occupied his land to the extent of one acre, hence the complaint was filed---Record showed that there were material contradictions in the evidence of complainant and witnesses---Witness had deposed that present accused along with absconding accused had occupied one acre land of complainant about 3/4 months prior to that complaint---At the time of alleged incident complainant and witness were also with him when accused occupied the land---Other witness had deposed that the accused had occupied the land at gunpoint by keeping hedge surrounding one acre and also issued threats to the complainant of dire consequences---Witness had deposed that Sonwah was situated about 300/400 feet away from disputed land, while other witness had stated in cross-examination that "Sonwah" would be 08 feet away from the disputed land---Complainant had stated that accused had made one hut at his one acre land forcibly, while witness had stated in cross-examination that accused had made two huts at the land of complainant---Other witness had stated that there were 4/5 houses at the land of complainant---Said material contradictions and discrepancies rendered the case of the complainant doubtful---Appeal against acquittal was dismissed, in circumstances.

(c) Appeal against acquittal---

----Double presumption of innocence---Interference---Presumption of double innocence is attached to the acquittal judgment, which normally did not call for interference unless the acquittal judgment or order is found arbitrary, capricious, fanciful and against the record.

Abdul Rahman A. Bhutto for Appellant.

Fayaz Ali Shah and Seema Abbasi for Respondents Nos. 1 and 2.

Ali Anwar Kandhro, Additional Prosecutor General for Respondents.

2021 Y L R 740

[Sindh]

Before Salahuddin Panhwar, J

BOARD OF INTERMEDIATE, EDUCATION, KARACHI through Secretary---Petitioner

Versus

HAFEEZ-UL-HAQ

and 2 others---Respondents

Constitution Petition No. S-343 of 2007, decided on 13th March, 2020.

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

----S. 15---Ejectment of tenant---High Court, jurisdiction of---Bona fide personal need of landlord---Choice of landlord---Board of Intermediate Education sought eviction of its tenant on bona fide personal need of demise shop---Rent Controller and Lower Appellate Court concurrently dismissed ejectment application and appeal filed by the Board---Validity---High Court could competently reverse findings of lower rent hierarchy if the same were found to be not in accordance with law---Availability of other shops / places could not be pressed by tenant to defeat landlord because the same was prejudicial to such preferential rights of landlord whereby landlord was to enjoy absolute prerogative to choose the best from available places---Petitioner was an institution which did not carry possibility of need of more space for adjusting students as well the staff---Premises was rented out to tenant only for purpose of running PCO (Public Call Office) but he by making breach thereof used the premises for purpose of Photostat machine, PCO as well as cold drink articles---Both the Courts below did not exercise their jurisdiction properly and fairly and High Court could undo such illegalities---High Court set aside concurrent orders passed by two Courts below and passed eviction order against tenant---Constitutional petition was allowed, in circumstances.

2004 CLC 1985; 2001 SCMR 1197; 1996 SCMR 1178; 2000 SCMR 1292; 1998 SCMR 2119; 2006 SCMR 117; 1995 SCMR 1125; 2000 SCMR 1613; PLD 2003 Kar. 34; 2010 SCMR 1925; 2004 CLC 1326; 2002 SCMR 241; 1990 CLC 698; 1991 SCMR 946; 2003 MLD 480 and 2010 MLD 356 ref.

Tajjammul H. Lodhi for Petitioner.

Muhammad Tariq Siddiqui for Respondents.

2021 Y L R 748

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto, J

AKBAR alias AK-BOLI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-144 of 2018, decided on 25th September, 2020.

(a) Sindh Arms Act (V of 2013)---

----S. 23(1)(a)---Recovery of firearm---Appreciation of evidence---Benefit of doubt---Prosecution case was that one unlicensed 30-bore pistol with three live bullets in magazine was recovered from the possession of accused---Record showed that complainant party was on patrolling and accused was arrested at 10.30 p.m. from an open plot---Source of light had not been mentioned---During investigation nothing came on record as to why accused was standing armed with pistol at odd hours of night in an open plot---First Information Report did not mention number of pistol but in mashirnama of arrest and recovery it had been mentioned that its number was rubbed---Complainant had deposed that after arrest and recovery, he brought the accused to police station---Evidence of said witness was silent with regard to the deposit of pistol in malkhana of police station or handing over weapon to the Investigation Officer---Prosecution had also failed to examine Police Constable who had taken weapon to the Ballistic Expert for report---Prosecution, in circumstances, had failed to prove the safe custody and safe transmission of weapon to the Ballistic Expert---Positive report of the Ballistic Expert would not improve the case of prosecution---Circumstances established that the conviction of accused was not warranted by the evidence produced against him in the case---Appeal against conviction was allowed, in circumstances.

Kamal Din alias Kamala v. The State 2018 SCMR 577 rel.

(b) Criminal trial---

----Witness---Police Officials as witnesses---Reliance--- Scope--- Evidence of Police Officials could not be discarded simply because they belong to police force, however, it would be unsafe to rely upon the evidence of Police Officials without independent corroboration.

Saifullah v. The State 1992 MLD 984 rel.

(c) Criminal trial---

----Benefit of doubt---Principle---If there was a single circumstance, which created reasonable doubt in a prudent mind about the guilt of accused, then the accused would be entitled to its benefit not as a matter of grace and concession but as a matter of right.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Roshan Ali Azeem Mallah for Appellant.

Shewak Rathore, Deputy Prosecutor General, Sindh for the State.

2021 Y L R 762

[Sindh]

Before Irfan Saadat Khan and Fahim Ahmed Siddiqui, JJ

HASHMI CHARITABLE TRUST through Chairman---Appellant

Versus

JAVED BALOCH and 3 others---Respondents

High Court Appeal No. 215 of 2017, decided on 3rd January, 2020.

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

----S. 15---Transfer of Property Act (IV of 1882), S.106---Civil Procedure Code (V of 1908), S.12(2)---Ejectment of tenant---Sub-letting---Pugree (Goodwill), payment of---Appellant was a trust and owner of shops in question which were in possession of defendant on "Pugree"---Money decree was passed in favour of plaintiff and tenancy rights regarding shops in question were ordered to be transferred in favour of plaintiff---Single Judge of High Court declined to set aside judgment and decree passed in favour of plaintiff---Plea raised by appellant was that no tenancy regarding shops in question could be created in favour of plaintiff to satisfy money decree passed against tenant---Validity---Periodic lease as provided under S.106 of Transfer of Property Act, 1882, was similar to common rental practice of immovable properties---Fine distinction between the two was that rental properties were governed under Sindh Rented Premises Ordinance, 1979, and as a special law prevailed over the provision of S.106 of Transfer of Property Act, 1882---About transfer of rental right without will and wish of landlord, nothing of such sort was mentioned in Sindh Rented Premises Ordinance, 1979 and it did not recognize induction of another tenant in premises by existing or previous tenant---Sub-tenancy was a tenant without will and wish of landlord and if it was established that there was a sub-tenant both had to face forced ejectment from property---Division Bench of High Court set aside order passed by Single Judge of High Court and remanded the matter to thresh out all intricate questions of law and fact for which parties would need to bring evidence---Appeal was allowed accordingly.

Allah Ditta v. Ahmed Ali Shah 2003 SCMR 1202; Muhammad Ali v. Ghulam Sarwer 1989 SCMR 640; Allied Bank of Pakistan Ltd v. Rashid Hayder Rizvi 1989 MLD 3602; T.E.S. (Pvt.) Ltd. v. Indian Chemicals AIR 1959 Asam 61; Muhammad Hanif v. Mumtaz Ahmed PLD 1986 Kar. 16; Muhammad Aslam v. Hanif Abdulla and Brothers 2003 SCMR 1667 and Mst. Sughra Kauser v. Muhmmad Siddique Manan 1992 MLD 903 ref.

Abrar Hassan for Appellant

Malik Naeem Iqbal for Respondent No.1.

Nemo for Respondents Nos. 2 to 4.

2021 Y L R 808

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar, J

TAIMOOR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-179 of 2016, decided on 15th May, 2020.

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

----Ss. 376(1) & 34---Rape, common intention---Appreciation of evidence---Benefit of doubt---Accused were charged for gang-rape with complainant---Record showed that complainant in her evidence exonerated the co-accused---During her statement, complainant deposed that accused present in the court was same person---Co-accused present in the court was not the same---Unknown culprit, who committed the offence at the time of incident, was not present---Consequently, complainant was declared hostile and was cross-examined---Such fact created doubt about the veracity of prosecution case---Appeal against conviction was allowed, in circumstances.

(b) Criminal trial---

----Witness--- Hostile witness--- Scope---Evidence of hostile witness was also to be considered like evidence of any other prosecution witness but evidence of such witness required strong corroboration through other pieces of evidence.

Abdul Wahid Bhurt and another v. Ashraf and 4 others 2019 YLR 487 rel.

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

----Ss. 376(1) & 34---Rape, common intention---Appreciation of evidence---Contradictions in the statements of witnesses--- Scope--- Accused were charged for committing gang-rape with complainant---Record showed that the complainant/alleged victim had deposed that all the accused were empty handed, whereas her mother/ alleged eye-witness in her examination-in-chief deposed that accused was holding pistol---Complainant/alleged victim in her cross-examination admitted that she and her mother were awakening at the time when accused knocked their door, whereas according to her mother/witness, she and her daughter were sleeping and woke up on knocking of door---Besides, mother of victim/ witness stated that they inquired and reply came likewise of her son then her daughter opened door---On the other hand, complainant/victim had not said a single word about making any inquiry from the person(s) who knocked the door and that voice of the person who replied was similar to that of his brother---Victim simply said that when they heard sound of knocking their outer door then she went and opened the door---According to complainant/alleged victim, absconded accused and unknown culprit caught hold of her mother, whereas accused forcibly brought her inside the room and committed rape with her, whereas witness did not speak about two culprits of catching her hold, rather she deposed that accused was holding pistol, whereas absconded accused caught hold her and maltreated her when accused took away her daughter inside the room---According to said witness, she raised cries but accused committed rape with her daughter---Mother, in her cross-examination deposed that nobody came on cries from neighbouring residences---On the other hand, complainant/alleged victim did not speak about raising cries and simply deposed that they requested them not to do such but in spite of that they committed the offence---Admitted position was that eye-witness was outside the room wherein the accused allegedly committed rape with the complainant, as such admittedly she did not witness the alleged act of committing sexual intercourse by the accused with complainant---Said witness, therefore, could not be termed as an eye-witness of the alleged offence of rape---Facts of the case suggested that evidence of eye-witness was also of not such quality so as to provide required strong corroboration to the evidence of hostile witness/ complainant---Circumstances established that prosecution had not succeeded in proving its case against the accused beyond shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 376(1) & 34---Rape, common intention---Appreciation of evidence---Ocular and medical evidence---Contradictions---Scope---Accused were charged for committing gang-rape with complainant---Medical evidence did not provide required corroboration to the evidence of hostile complainant/victim---Medical Officer, who examined the complainant, found her gate normal, neither mark of any violence on any part of her body, no any abnormality was detected on her breast---On examination of genital tract, perineum was healthy, no section or blood was present, no abnormality was detected on valva---Human sperm was detected in external vaginal swap and not in internal vaginal swab---Mere detection of human sperm did not prove that such sperm were of the accused, unless and until DNA test was conducted or at least semen matching was undertaken, which was not done in the case---Circumstances established that prosecution had not succeeded in proving its case against the accused beyond shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

Haider Ali and others v. The State 2016 SCMR 1554 rel.

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

----Ss. 376(1) & 34---Rape, common intention---Appreciation of evidence---Delay of more than two days in lodging the FIR---Effect---Accused were charged for committing gang-rape with complainant---Record showed that there was a delay of more than two days in lodging of the FIR---No plausible explanation had been furnished by the complainant as to why she waited for two days and then she went to police station and during this period she had admittedly taken bath and also changed the clothes which she was wearing at the time of alleged incident---Said facts created doubts regarding deliberation and consultation on the part of the complainant---Possibility of false implication of the accused, therefore, could not be excluded from consideration---Appeal against conviction was allowed, in circumstances.

Ayub Masih v. The State PLD 2002 SC 1048 rel.

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

----Ss. 376(i) & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Rape, common intention---Appreciation of evidence---Withholding material witness---Presumption---Accused were charged for committing gang-rape with complainant---No mashir had been examined at all in the case---One of the mashirs was real brother of the complainant, however, he was given up on the ground that he was won over by the accused, which was fatal to the prosecution case---Said fact did not appeal to a prudent mind that as to how a brother could be won over by the accused persons, who had allegedly ruined the chastity of her sister---Such circumstances smacked something fishy and Art. 129(g) of Qanun-e-Shahadat, 1984, would come into play---Appeal against conviction was allowed, in circumstances.

Bashir Ahmed alias Mannu v. The State 1996 SCMR 308; Muhammad Sharif v. Tahirur Rehman and 3 others 1972 SCMR 144 and 1980 SCMR 708 rel.

(g) Criminal trial---

----Benefit of doubt--- Principle---Conviction must be based and founded on unimpeachable evidence and certainty of guilt---Any doubt arising in the prosecution case must be resolved in favour of the accused.

Wazir Muhammad v. The State 1992 SCMR 1134; Shamoon alias Shamma v. The State 1995 SCMR 1377 and Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Faisal Ali Raza Bhatti for Appellant.

Shewak Rathore, D.P.G. Sindh for the State.

Complainant inspite of notice, has chosen to remain absent.

2021 Y L R 836

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

SARFRAZ alias BHOORA---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos.85 and 86 of 2015, decided on 7th April, 2020.

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

----Ss. 365-A, 353, 324, 186 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for extorting property, valuable security etc., assault or criminal force to deter public servant from discharge of his duty, attempt to commit qatl-i-amd, obstructing public servant in discharge of public functions, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused was charged for kidnapping of the nephews of the complainant for ransom---Complainant immediately informed the police for kidnapping of his nephews---Police on spy information that abductees had been kept at a particular place by the accused, reached there but accused started firing at police party to kill them, police made firing in retaliation, accused made their escape good---Record showed that the FIR was registered with promptitude---Accused was not named in the FIR but others were so named---Said fact showed that name of accused only came up during the police inquiry---Abductees were eye-witnesses of the occurrence---One of the abductees did not give evidence, whereas the other abductee stated that the accused present in the court was not the same person whom he identified at the police station who had kidnapped him---Said witness was declared hostile and was cross-examined by the prosecution---Complainant was also declared hostile and was cross-examined by the prosecution as in his evidence he had stated that he had forgiven the accused---Rope found at the scene of the offense did not connect the accused to the kidnapping and no witness actually witnessed the kidnapping of the abductees---No ransom was paid and although the CDR indicated that the complainant had received a call but the number/SIM that call was made from had no connection with the accused---No recording of any ransom demand was available---Although an encounter did take place between the police and the culprits at the time when the abductees were rescued by the police but there was no evidence that the accused was involved in that encounter---Circumstances established that there was a doubt that the accused was involved in either the kidnapping for ransom of the abductees and the encounter which followed---Appeal against conviction was allowed, in circumstances.

(b) Criminal trial---

----Benefit of doubt---Principle---Prosecution must prove its case against the accused beyond a reasonable doubt---Benefit of doubt must go to the accused by way of right as opposed to concession.

Hasan Feroz and Shah Imroze Khan for Appellant.

Saleem Akhtar Buriro, Additional Prosecutor General for Respondent.

2021 Y L R 843

[Sindh]

Before Abdul Maalik Gaddi and Mrs. Rashida Asad, JJ

YOUSUF and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos. 618, 619 and 620 of 2020, decided on 20th May, 2020.

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

----S. 497---Penal Code (XLV of 1860), Ss, 324, 353, 186 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault and criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention, possession of unlicensed arms, act of terrorism---Bail, grant of---Further inquiry---Police party, on spy information, reached at a pointed place to arrest the narcotics dealers, on seeing police party, accused party made firing upon them, in retaliation, police party also fired back on the accused persons, due to which one culprit sustained bullet injury on his leg and arrested two accused were arrested at the spot---Record showed that cases had been challaned and present accused were no more required for investigation---Case was of alleged encounter in between the parties with sophisticated weapons for a considerable time and at some distance---During the alleged encounter nobody from police officials had received any injury even police mobile had also not hit by any bullet---Accused received injury at his right leg below the knee, which did not appeal to prudent mind---Incident took place in a populated area, despite that no person from the locality or passer by from the road had been cited to witness the event, as such, the case required further enquiry as to whether the incident had taken place in a manner as stated in FIR or otherwise---Record showed that besides weapons, 1208 and 1206 grams charas was recovered from the accused respectively through common mashirnama, which was prepared in that case---Accused had been acquitted in the narcotic's case on the basis of same mashirnama/same set of evidence---Said fact had not been disputed therefore, on that ground also case of the accused required further probe---Nothing on record that accused were previous convict or they had remained indulging in any other identical case in past---Accused had made out their case for grant of bail and consequently they were admitted to bail, in circumstances.

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

----S. 497---Bail---Principles---Deeper appreciation of evidence---Scope---Benefit of doubt---Scope---Deeper appreciation of evidence could not be gone into but a bird-eye view was to be taken of available record to satisfy prima facie, whether the accused was/were connected with the commission of offence or not---Benefit of doubt would go to the accused even at bail stage.

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

----S.497---Bail---Tentative assessment---Scope---Any observation made in the order for bail was tentative in nature and would not affect the merits of the case.

Abdul Jalil Khan Marwat for Applicants.

Hussain Bux Baloch, Additional Prosecutor General Sindh along with Complainant ASI Kamal Anwar Police Station New Karachi Industrial Area, Karachi for Respondent.

2021 Y L R 851

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar and Abdul Mobeen Lakho, JJ

ZOHAIB---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-89 of 2018, decided on 14th October, 2020.

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

----Ss. 302, 337-H(2) & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Qatl-i-amd, rash and negligent act, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused and his co-accused were charged for committing murder of a Police Constable---Accused was nominated in the FIR with role of causing fire shot injury to deceased, however, the fire shot made by him missed and did not prove to be fatal---Co-accused, who allegedly caused murder of the deceased, was killed in an encounter---Accused, against whom vicarious liability was alleged, could not be held responsible for causing murder of the deceased---Police had not establish said charge against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 337-H(2) & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Qatl-i-amd, rash and negligent act, common intention, act of terrorism---Appreciation of evidence---Act of terrorism--- Applicability--- Scope---Accused and his co-accused were charged for committing murder of Police Constable---No terror or harassment to anyone was caused at the time of incident---Alleged incident was committed in odd hours of the night, nobody from public was attracted through which it could be deduced that the offence/action allegedly committed by the accused or it was designed or it had created sense of insecurity or fear in the mind of public at large---Deceased at the time of alleged incident had not disclosed that at which police station he was posted for which prosecution also failed to produce any reliable document showing that the deceased was even a Police Official bearing valid badge---Deceased was not in police uniform---Complainant, who was also a Police Officer, had not mentioned any thing in his FIR or deposed before the Trial Court that deceased was posted at a specific police station; therefore, was going to perform his lawful duties and was done away with by the culprits---Trial Court had wrongly taken cognizance and tried the case---Appeal against conviction was allowed, in circumstances.

Bashir Ahmed Leghari v. The State 2020 SCMR 595 ref.

Muhammad Akbar Khan and 3 others v. SHO Police Station Ghrhi Khairo, District Jacobabad and others 2017 PCr.LJ 1280; Ch. Basir Ahmad v. Naveed Iqbal and 7 others PLD 2001 SC 521 and Ghulam Hussain and others v. The State and others PLD 2020 SC 61 rel.

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

----Ss. 302, 337-H(2) & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Qatl-i-amd, rash and negligent act, common intention, act of terrorism---Appreciation of evidence---Recovery of crime empties from the place of incident--- Reliance--- Scope--- Accused and co-accused were charged for committing murder of Police Constable---Record showed that the Investigating Officer had secured four empties from the scene of incident---Said empties were neither produced before the Trial Court nor were sent to the Forensic Science Laboratory/Ballistic Expert so as to establish the factum of fire shot made by one weapon or from different weapons---Said features germinated from the prosecution case themselves show that the prosecution had failed to prove its charge against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 337-H(2) & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Qatl-i-amd, rash and negligent act, common intention, act of terrorism---Appreciation of evidence---Discrepancies in the prosecution case---Scope---Accused and his co-accused were charged for committing murder of Police Constable---Record showed that the Medico-Legal Officer in his cross-examination had categorically stated that he did not know the name of Police Official who had handed over dead body to him and there was overwriting in police letter as well as post-mortem notes---Post-mortem notes showed that in the column of police station, the name of police station was mentioned which later was corrected---All such features showed that the offence was not committed in a manner as had been reported---Such a major discrepancy had created a lot of doubts into the veracity of prosecution evidence which would always go in favour of the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 337-H(2) & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Qatl-i-amd, rash and negligent act, common intention, act of terrorism---Appreciation of evidence---Motive not proved---Scope---Accused and his co-accused were charged for committing murder of Police Constable---Prosecution had not established whether the deceased was victim of any enmity or otherwise---Motive was an essential piece of evidence, which always furnished support to the prosecution case as to involvement of the accused in the offence allegedly committed by him---Circumstances established that the prosecution had failed to prove its charge against the accused---Appeal against conviction was allowed, in circumstances.

Safdar Abbas and others v. The State and others 2020 SCMR 219 rel.

(f) Criminal trial---

----Benefit of doubt---Principle---If there was a single circumstance, which created reasonable doubt in a prudent mind about the guilt of any accused, then the accused would be entitled to such benefit as a matter of right but not as a matter of grace or concession.

Mohammad Mansha v. The State 2018 SCMR 772 and Faheem Ahmed v. The State 2008 SCMR 1572 rel.

Sameeullah Rind for Appellant.

Ms. Rameshan Oad, Assistant Prosecutor General, Sindh for the State.

2021 Y L R 867

[Sindh]

Before Muhammad Shafi Siddiqui and Adnan-ul-Karim Memon, JJ

Sardar ABDUL HAMEED---Petitioner

Versus

PROVINCE OF SINDH through Secretary, Local Government, Karachi and 17 others---Respondents

Constitutional Petition No. D-6168 of 2020, decided on 26th January, 2021.

Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Constitutional petition in respect of award of contract by Water and Sewerage Board for water hydrants, for sale to general public and other commercial sales---High Court directed the Water and Sewerage Board to adhere to their rules regarding individual contractors of different hydrants and ensure no such rules were violated---Constitutional petition was disposed of, accordingly.

Muhammad Rafique Sia v. Province of Sindh and others 2016 CLC 170 rel.

Zakir Hussain Bughio for Petitioner.

Ali Safdar Depar, Assistant A.G. along with Raza Mian, DSP (Legal) and Hameed Ahmed Khan, DSP on behalf of DIG (Traffic).

2020 Y L R 886

[Sindh]

Before Nazar Akbar, J

Mirza SHAFAAT ALI BAIG---Plaintiff

Versus

Wg. Cdr. (Rtd.) KHURSHID ANWAR and another---Defendants

Suit No. 696 of 2003, decided on 20th April, 2018.

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

----Ss. 12 & 54---Suit for specific performance, permanent injunction and damages---Agreement to sell immoveable property---Specific clauses of the contract agreed upon between the parties---Scope and effect ---Plaintiff contended that he was ready to pay balance sale-consideration but the documents of defendant qua suit-property were found defective at the agreed time of payment of remaining amount---Held, that contents of the contract between the parties , admittedly, stipulated two clauses; one (clause) debarred the plaintiff/vendee from suing the defendant in case the deal was not finalized; and by virtue of other (penalty) clause , his right to sue had been limited to enforcement of the compensation of double the amount of earnest-money paid by the plaintiff/vendee---Said penalty clause would have been subject to the discharge of burden of proof by the plaintiff that defendant had refused to sell the suit-property to him as well as his own willingness and ability to perform his part of contract on time---Evidence adduced in the present case revealed that the plaintiff himself was guilty of not having the balance sale consideration readily available to be paid to the defendant on stipulated date---Plaintiff, in the cross-examination, had admitted that pay-order for the payment to the defendant was obtained after the stipulated date---One of the plaintiff's witnesses also conceded that on stipulated date he did not see pay-order with the plaintiff and he was only informed by the plaintiff that he (plaintiff) had brought pay-order for payment to the defendant---Plaintiff had not even produced any pay-order in his evidence---Defendant though having come to know that his documents were defective, neither got the defect removed nor suggested any other way for completing the deal---Behaviour of the defendant could be considered as his refusal to sell and as he himself emphasized on the said clauses of the agreement to sell, therefore, he was not entitled to forfeit the advance (biana)---Plaintiff was entitled to claim only the amount as stipulated in the penalty clause of the contract---High Court directed the defendant to make payment of amount stipulated as compensation to the plain-tiff---Suit was disposed of accordingly.

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

----Ss. 12 & 54---Suit for specific performance, permanent injunction and damages---Agreement to sell immoveable property---Plaintiff neither invited objections from the public-at-large nor sent legal notice to the defendant before filing his suit---Scope and effect---Held, that plaintiff, after entering into contract with the defendant, during the stipulated (30 days)time, did not invite objections from the public-at-large for the purchase of the suit-property---Plaintiff knew that the defendant was resident of another City and he would come only on appointed date, therefore, at least in stipulated time of thirty (30) days, he should have checked/co-ordinated with the defendant about the requirement for transfer of the suit-property in his name---Plaintiff had, admittedly, not made such effort so his conduct confirmed the stance of defendant that all the formalities were to be completed by the plaintiff---Plaintiff needed to make sure that all the documents should have been intact for completing the sale but he did nothing to secure his interest under the sale-agreement in the suit-plot---Plaintiff did not even bother to send a legal notice to the defendant before filing the suit---In view of the evidence on record and contents of the agreement (the clause debarring the plaintiff from suing as well as penalty clause), the plaintiff was not entitled to specific performance of sale-agreement to the extent of enforcing defendant to execute transfer documents in respect of suit-property---Plaintiff was also not entitled to claim damages against the defendant---High Court directed the defendant to make payment to the plaintiff of double of the earnest amount as stipulated in the penalty clause of the contract---Suit was disposed off accordingly.

K. B. Bhutto and Syed Sikendar for Plaintiff.

Barrister Fayyaz Ahmed for Defendant No.1.

Pakistan Defence Officers Housing Authority through its Administrator for Defendant No.2.

2021 Y L R 910

[Sindh]

Before Mohammad Ali Mazhar and Agha Faisal, JJ

USMAN ALI---Petitioner

Versus

SECRETARY, EXCISE DEPARTMENT GOVERNMENT OF SINDH and others---Respondents

C.P. D-240 of 2019, decided on 17th February, 2020.

Provincial Motor Vehicles Ordinanc (XIX of 1965)---

----S. 44---Constitution of Pakistan, Art. 199--- Constitutional petition--- Petitioner purchased a taxi/cab and got the same registered pursuant to the Prime Minister's Yellow Cab Transport Scheme---Petitioner applied to have the vehicle transferred from commercial to private---Upon denial of request by the Motor Registering Authority, constitutional petition was preferred---Contention of Motor Registering Authority was that the said vehicle was auctioned subject to the restriction that it would continue to be used for public transport and that the said stipulation would be applicable mutatis mutandis upon all subsequent purchasers thereof---Validity---Vehicle was auctioned subject to certain terms and conditions and that the same were in force at the time when the vehicle was purchased by the petitioner---Petitioner was well aware of the commercial nature of the vehicle's registration and had provided no reason as to why he had purchased such a vehicle if he was unwilling to abide by the terms and conditions appurtenant therewith---Petitioner had failed to demonstrate any vested right in the first instance for grant of the relief sought---Constitutional petition, being misconceived and devoid of merit, was dismissed.

Petitioner in person.

Kafeel Ahmed Abbasi, Deputy Attorney General for Respondents.

Jawad Dero, Additional Advocate General Sindh for Respondents.

Waheed Siddiqui, AETO Excise and Taxation Department.

2021 Y L R 940

[Sindh]

Before Amjad Ali Sahito, J

NASEER KHAN---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.147 of 2019, Criminal Appeal No. 541 of 2018, Criminal Appeals Nos. 36 and 75 of 2019, decided on 18th August, 2020.

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

----Ss. 364 & 164---Confession, recording of---Object---Before recording confession and that too in crimes entailing capital punishment, the Recording Magistrate had to essentially observe all the mandatory precautions---Fundamental logic behind the same elaborator.

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

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

----Ss. 302, 201 & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, causing disappearance of evidence of offence, common intention---Appreciation of evidence---Benefit of doubt---Confessional statement of accused---Infirmities---Scope---Accused was charged that he and his companion committed murder of the son of complainant and threw his body into drainage/Nala---From the perusal of the confessional statement, it appeared that examination-in-chief was recorded in which no precautionary measurements were made nor any question was put but simply the examination-in-chief of accused was recorded---Investigating Officer had produced the accused but due to strike of the advocates, his confessional statement could not be recorded and the matter was adjourned to 12.09.2013, thereafter his statement was recorded on the said date---Just accused was produced by the Investigating Officer for recording his confession on 7-09-2013 but the matter was adjourned on 09.09.2013 without recording the confessional statement of the accused and the custody was given to the same Investigating Officer to produce him on said date---If such like situation arose, then the Magistrate had to send the custody of the accused in the judicial lockup to provide a fair chance and to remove any kind of fear from his mind but all was not followed---Accused was again produced on the said date and his confessional statement was recorded---Circumstances established that the prosecution story engulfed under the thick clouds of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 201 & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, causing disappearance of evidence of offence, common intention---Appreciation of evidence---Benefit of doubt---Confessional statement of accused---Illegalities---Scope--- Accused was charged that he along with his companion committed murder of the son of complainant and threw his body into drainage/Nala---Record showed that the Recording Magistrate, which recording confession, committed successive illegalities one after other and had not observed the legal formalities which were the binding procedure for taking required precaution and observing the requirements of the provision of S.364 read with S.164, Cr.P.C.---From a perusal of confessional statement it appeared that no warning was issued to accused that he was not bound to confess nor he was informed that if he confessed, it might be used as evidence against him---Even no question was put to him that had he been given any inducement to make his confessional statement---Information was not given to accused that after making a statement whether confessional or not before Magistrate, he would not be remanded to police custody but would be sent to the judicial lockup---Said questions were not put nor had been brought on the record but simply his examination-in-chief was recorded---Circumstances established that the prosecution story engulfed under the thick clouds of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 201 & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, causing disappearance of evidence of offence, common intention---Appreciation of evidence---Benefit of doubt---Delay of about six days in recording the confessional statement of accused---Effect---Accused was charged that he along with his companion committed murder of the son of complainant and thrown his body into drainage/Nala---Accused was arrested on 06.09.2013---Statement was filed by the Investigating Officer for recording confessional statement of accused the next day and statement was recorded with a delay of six days---Reason was shown by the Judicial Magistrate that he had not recorded confessional statement promptly on the ground that there was a strike of Advocates---High Court observed that strike was of the Advocates not for the litigants---When the accused was produced before Judicial Magistrate, he should have recorded his confessional statement after observing all the codal formalities---Circumstances established that the prosecution story engulfed under the thick clouds of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 201 & 34---Qatl-i-amd, causing disappearance of evidence of offence, common intention---Appreciation of evidence---Principle----One tainted piece of evidence could not corroborate other tainted piece of evidence.

Muhammad Bakhsh v. The State PLD 1956 SC 420 rel.

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

----Art. 16---Accomplice as witness---Scope--- Accomplice would be a competent witness against an accused person, except in the case of an offence punishable with Hadd---Conviction was not illegal merely because it proceeded upon the uncorroborated testimony of an accomplice---Accomplice fell within the category of wicked person in the terms of the Verse of the Holy Qur'an, therefore, before acting upon his testimony, the truthfulness of it should be verified from other corroborative evidence.

Federation of Pakistan v. Muhammad Sham Muhammadi 1994 SCMR 932 rel.

(g) Criminal trial---

----Circumstantial evidence--- Scope---Prosecution, in case of circumstantial evidence had to prove all the links of the chain and there should be no gap between the links of the chain---Rule was that the facts proved must be incompatible with the innocence of the (accused) convict and incapable of explanation upon any other reasonable hypothesis than that of the guilt of (accused) convict---Concurrence of well authenticated circumstances composed a stronger ground of assurance than the positive testimony of circumstances---Case based on circumstantial evidence---Process of inference and deduction involved delicate and perplexing character liable to numerous cases of fallacy---One could tell lie but the circumstances could not---To justify the inference of the guilt, incriminating facts must be incompatible with the innocence of the accused of the guilt of any other person and incapable of explanation upon any other reasonable hypothesis than that of the guilt of the accused---No link in the chain was to be missing and all the circumstances must lead to the guilt of the accused.

Ali Khan v. The State 1999 SCMR 955 rel.

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

----Ss. 302, 201 & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, causing disappearance of evidence of offence, common intention---Appreciation of evidence---Benefit of doubt---Accused was charged that he along with his companion committed murder of the son of complainant and threw his body into drainage/Nala---Evidence in the case with the police was a motorcycle, in which the child was brought in the flat, injections which were injected, piece of cloth, which was fixed in the mouth of the child and a pistol being shown in the custody of co-accused---Accused had abducted the child and detained in the flat but no evidence was brought on record that the Investigating Officer had ever visited the place of detention of the child and recorded the statement of the vicinity or flat-holders to believe that accused were residing in the said flat---Furthermore, the Investigating Officer had failed to collect the injections injected to the minor, piece of cloth which was put in the mouth of the child, motorcycle and another incremental piece of evidence to connect all the links of chains---Circumstances established that the prosecution story engulfed under the thick clouds of doubt---Appeal against conviction was allowed, in circumstances.

(i) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance created reasonable doubt 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 the matter of right.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

(j) 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 adduced by the prosecution.

Ms. Abida Parveen Channar for Appellant (in Crl. Jail Appeal No.147 of 2019).

Ahmed Ali Ghumro for Appellants (in Crl. Appeal No. 541 of 2018).

None present for the appellant (in Crl. Appeal No.36 of 2019).

Shaikh Muhammad Mushtaq for Appellant (in Crl. Appeal No.75 of 2019).

Nasrullah Malik for the Complainant.

Talib Ali Memon, A.P.G. for the State.

2021 Y L R 984

[Sindh (Sukkur Bench)]

Before Fahim Ahmed Siddiqui and Khadim Hussain Tunio, JJ

MURAD ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-41 of 2019, decided on 18th August, 2020.

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

----S. 9(c)---Possession of 13 kilograms charas---Appreciation of evidence---Chain of safe custody---Scope---Prosecution case was that 13 packets of hashish (charas) weighing 13 kilograms were recovered from a bag lying on the motorcycle of the accused and an amount of Rs.6500/- was recovered from the side pocket of his shirt---If the property (narcotics) was deposited at the earliest point of time with the police station and the same remained there from the date of recovery to the date on which the same was received with the Chemical Analyser, the chain of safe custody remained unbroken---Chain of safe custody began with the recovery of narcotics, it included the separation of sample and sealing the same on the spot and it should remain continuous and intact till its dispatch to the Chemical Analyser and received by him in the same sealed condition---Any break in the chain of custody or lapse in the control of the sample would cast doubt and also impair the conclusiveness of the report of the Chemical Analyser---Prosecution having established the offence appeal against conviction was dismissed, in circumstances.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 rel.

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

----S. 9(c)---Possession of 13 kilograms charas---Appreciation of evidence---Safe custody---Effect---Prosecution case was that 13 packets of hashish (charas) weighing 13 kilograms were recovered from a bag lying on the oil tank of motorcycle of the accused and an amount of Rs.6500/- was recovered from the side pocket of his shirt---Record showed that the prosecution witnesses had stated that the property was sealed on the spot and as per report of Chemical Analyzer the property was received in sealed condition which was sufficient to establish the chain of safe custody specially when no question was put by the defence in that regard---In the present case, entire property i.e. 13-kilograms hashish (charas) was sealed on the spot and sent to the Chemical Laboratory and the report of Chemical Analyzer indicated that the property was transited from the police station and received by the Chemical Analyzer on the same date, as such the continuity of the chain of safe custody was intact---Bearer of the property, in such circumstances, should necessarily be examined only in cases where some visible delay in transmission and reception of the property was observable so that it could be established that during such delay the property remained in the safe custody of authorized person or persons to eliminate any chance of manipulation and tampering with the property---Appeal against conviction was dismissed, in circumstances.

Wahid Bakhsh v. The State 2001 YLR 2958; Desser Mal v. The State 2007 PCr.LJ 462; Irfan Ali Bhayo v. The State 2008 YLR 37; Ameer Hamza alias Hamza v. The State 2015 PCr.LJ 1402; Hussain Vakhsh alias Kabacho Channa v. The State 2017 PCr.LJ 501; Shan v. The State 2018 MLD 702; Shoaib Ali v. The State 2018 MLD 1835; The State v. Imam Bakhsh and others 2018 SCMR 2039; Muhammad Boota v. The State and others 2020 SCMR 196; Muhammad Sarfraz v. The State 2017 SCMR 1874; Budho and 2 others v. The State 2018 PCr.LJ 1393; Shazia Bibi v. The State 2020 SCMR 460; Mushtaque Ahmed v. The State and another 2020 SCMR 474 and Asmat Ali v. The State 2020 SCMR 1000 ref.

Zahid and Riaz Ali v. The State 2020 SCMR 590 rel.

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

----S. 9(c)---Possession of 13 kilograms charas---Appreciation of evidence---Prosecution case was that 13 packets of hashish (charas) weighing 13 kilograms were recovered from a bag lying on the oil tank of motorcycle of the accused and an amount of Rs.6500/- was recovered from the side pocket of his shirt---In the present case, prosecution witness/Police Constable, the bearer of the narcotic, was examined but the defence counsel did not cross-examine that witness in a way, which might delink the continuity of the chain of safe custody---Statements of recovery witnesses were in line with each other and there was no motive for false involvement of the accused in the case, when a huge quantity of narcotic was recovered, which could not be foisted---Defence objected that Register No. 13 of the police station was not produced during the trial so also registration of FIR at PS "N" while the arrest and recovery were affected by the police party of PS "A"---Register of store-room (No.13) was least necessary in the present case---Admittedly, Police Station "A" was a newly established Police Station and till that time the FIR was registered at the parent Police Station on the administrative ground---Under S.27 of the Control of Narcotic Substances Act, 1997, the property was to be handed over to the nearest Police Station having requisite facilities and the records in respect of safe custody---Since such facilities were available at Police Station "N" but not at Police Station "A", therefore, it was advisable that the said Police Station was approached regarding lodgment of FIR and using the store-room (malkhana) for keeping the recovered narcotic in safe custody---Appeal against conviction was dismissed, in circumstances.

Asmat Ali v. The State 2020 SCMR 1000 rel.

(d) Criminal trial---

----Witnesses---Minor contradictions in the statements of witnesses---Scope---Minor and insignificant contradictions were bound to come in deposition due to natural phenomena of the waning of human memory after sometimes of happening of the event.

Nisar Ahmed Bhanbhro for Appellant.

Aftab Ahmed Shar, Additional P.G. for Respondent.

2021 Y L R 1021

[Sindh (Hyderabad Bench)]

Before Muhammad Shafi Siddiqui and Irshad Ali Shah, JJ

VIJAY KUMAR and others---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-115 of 2015, decided on 24th November, 2020.

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

----Ss. 302, 365-A, 377, 201 & 34---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Qatl-i-amd, kidnapping for ransom, sodomy, causing disappearance of evidence of offence, common intention, act of terrorism---Appreciation of evidence---Prosecution case was that the accused persons abducted the son of complainant for ransom committed sodomy and thereafter murdered him---Appreciation of evidence---Contradictions in the statement of eye-witness---Scope---Record showed that eye-witness/brother of the complainant repeated the story as mentioned in the FIR---Said witness, in cross-examination disclosed that accused and co-accused was driving their own respective Rickshaws but he did not know about their (Rickshaws) registration numbers---Said was first major contradiction as compared to the contents of the FIR, which disclosed only one Rickshaw at the place of incident---Circumstances established that the prosecution had not been able to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances. [p. 1025] A

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

---- Ss. 302, 365-A, 377, 201 & 34---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Qatl-i-amd, kidnapping for ransom, sodomy, causing disappearance of evidence of offence, common intention, act of terrorism---Appreciation of evidence---Medical evidence---Scope---Prosecution case was that the accused persons abducted the son of complainant for ransom, committed sodomy and thereafter murdered him---Record showed that the remarks of Medical Officer (though not examined) in the post-mortem report were that from external and internal examination of dead body of son of complainant and his opinion was that death occurred due to neurogenic shock as a result of injuries, which were sufficient to cause death and all those injuries, individually as well as collectively were ante-mortem in nature---Cause of death when found to be the incident on account of neurogenic shock of injuries wounds sloughing of flesh from right leg from thigh (mid) to ankle and abrasion on the left anterolateral side of anus, it was inevitable for the prosecution to have obtained the sperm report of the sample found on the body and of the accused, therefore, it could not be confidently said that the victim was subjected to sodomy by the accused since no such report of sperm test was available---Circumstances established that the prosecution had not been able to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 365-A, 377, 201 & 34---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Qatl-i-amd, kidnapping for ransom, sodomy, causing disappearance of evidence of offence, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused persons abducted the son of complainant for ransom committed sodomy and thereafter murdered him---In the present case, there was no eye-witness of the incident as to how the victim was beaten and how he was kept in a gunny bag and thrown in channel Wah---Incident allegedly took place; FIR was lodged after three days of the incident---What happened in between was a mystery as even the last seen incident was not corroborated so as to award life imprisonment---Trial Court based his findings/judgment on circumstantial evidence and the mitigating circumstances---Record transpired that there was no eye-witness at all and even the story of the prosecution was not confidence inspiring as the boy who was allegedly abducted belongs to a poor class and it did not inspire confidence that somebody could abduct a child who belongs to a family from where there were remote chances of any financial benefits---Circumstances established that the prosecution had not been able to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Syed Zeeshan Shah for Appellants.

Mrs. Razia Ali Zaman for the Complainant.

Mrs. Rameshan Oad, A.P.G. for Respondent.

2021 Y L R 1060

[Sindh]

Before Nazar Akbar, J

SHAHID WAHAB SIDDIQI---Appellant

Versus

Syed FARHAJ AHMED and 2 others---Respondents

Criminal Appeal No. 162 of 2019, decided on 2nd July, 2020.

(a) Illegal Dispossession Act (XIof 2005)---

----S. 7---Eviction and mode of recovery as an interim relief---Scope---Appellant although not accused but was found to be in possession of the suit property at the time of execution of orders on an application under S.7 of Illegal Dispossession Act, 2005, contended that he was not guilty of the offence of illegal dispossession; that it was mandatory for the Trial Court to have recalled its interim order and that the possession of subject flat should have been restored to him---Held; refusal of the Trial Court to recall the order under S.7 of Illegal Dispossession Act, 2005, was contrary to the well settled principles of law that interim order passed during the trial/proceedings stand merged in the final order---Beneficiary of interim order even after dismissal of his complaint could not enjoy the fruits of such order---Appellant was deprived of possession of the suit property without notice---Appeal was allowed, in circumstances and the Nazir of the Court was directed to put the appellant in possession of the suit property.

Rahim Tahir v. Ahmed Jan and others 2007 PCr.LJ 1920; Gulzar Ali and another v. Station House Officer, Police Station Kandiaro and others PLD 2012 Sindh 390; Mansab Ali v. Suleman and 7 others 2008 PCr.LJ 199 and Mst. Khalida Bibi and another v. Additional Sessions Judge, Lahore and 7 others 2008 PCr.LJ 141 rel.

(b) Words and phrases---

----"Ad interim"---Meaning.

Federation of Pakistan through Secretary, Ministry of Interior v. General (R) Pervez Musharraf and others PLD 2016 SC 570 rel.

(c) Words and phrases---

----"Interim"---Meaning.

Federation of Pakistan through Secretary, Ministry of Interior v. General (R) Pervez Musharraf and others PLD 2016 SC 570 rel.

(d) Words and phrases---

----"Temporary"---Meaning.

Federation of Pakistan through Secretary, Ministry of Interior v. General (R) Pervez Musharraf and others PLD 2016 SC 570 rel.

Syed Shahzeel Hassan for Appellant.

Muhammad Nadeem Memon for Respondent No.1.

Ms. Rahat Ahsan, Addl. P.G. for Respondent No.2.

2021 Y L R 1097

[Sindh (Larkana Bench)]

Before Naimatullah Phulpoto and Zulfiqar Ali Sangi, JJ

MUHAMMAD USMAN LAKHTIO---Petitioner

Versus

PUNHAL LAKHTIO and another---Respondents

Criminal Appeal No.D-13, Criminal Acquittal Appeal No.D-09, Criminal Jail Appeal No.D-07 along with Criminal Confirmation Case No. D-03 of 2019, decided on 4th November, 2020.

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

----Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Accused were charged for making firing upon the brother and brother-in-law of complainant, due to which, brother of complainant died whereas his brother-in-law sustained injuries---Ocular account had been furnished by two eye-witnesses and complainant--- Eye-witnesses fully supported the case of prosecution who were the natural witnesses---Evidence of witnesses was fully supported by medical evidence---Identification of accused at the place of incident by the witnesses was fully established as the accused and the witnesses were very close relatives to each other and knew each other very well---Prosecution as such had proved its case beyond a reasonable doubt against the accused through trustworthy, reliable, cogent, oral as well as supportive evidence---Appeals against conviction were dismissed, however, the sentence of death was converted to imprisonment for life, in circumstances.

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

----Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Minor contradictions in statements---Scope---Accused were charged for making firing upon the brother and brother-in-law of complainant, due to which, brother of complainant died whereas his brother-in-law sustained injuries--- Minor contradictions in the evidence were not sufficient to discard the evidence of natural witnesses as the same always remained available in every case as no one could give evidence like photograph---Minor contradictions if existed in the case same might be ignored---Evidence of the prosecution witnesses was recorded after lapse of time and such minor contradictions were natural due to lapse of time---Appeals against conviction were dismissed, however, the sentence of death was converted to imprisonment for life, in circumstances.

Zakir Khan v. The State 1995 SCMR 1793 rel.

(c) Administration of justice---

----Every case was to be decided on the basis of totality of impressions gathered from the circumstances of the case and not on the narrow ground of cross-examination or otherwise of a witness on a particular fact stated by him.

State v. Rab Nawaz and another PLD 1974 SC 87 rel.

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

----Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Accused were charged for making firing upon the brother and brother-in-law of complainant, due to which, brother of complainant died whereas his brother-in-law sustained injuries---Record showed that the complainant stated in the FIR that they had a dispute over land with father of accused and others on which father of accused and others were annoyed---Complainant further stated in the FIR that accused asked the deceased that deceased insulted on the issue of land, he would not be spared---Complainant in his examination-in-chief deposed the same motive---Trial Court relied upon the evidence of complainant and the witnesses which they had deposed in their examination-in-chief and did not consider the cross-examination of the complainant wherein complainant himself admitted by replying that "The faisla regarding landed dispute was held at Police Station between him and accused persons wherein he took Holy Quran Sharif at Police Station at the instance of accused persons---From that reply it was very much clear that the dispute in between the parties regarding the land was settled prior to the incident---Complainant and other witness did not state as to when and where the deceased insulted the accused or when again the dispute started in between the parties, the same was missing in the case---Evidence of the Investigating Officer showed that he had not taken any efforts to collect independent evidence about the asserted motive and the complainant was even not investigated/interrogated---In the absence of proof of the asserted motive, the real cause of occurrence had remained shrouded in mystery---Such factor had put caution in the matter of the sentence of death of accused---Appeals against conviction were dismissed, however, the sentence of death was converted to imprisonment for life, in circumstances.

(e) Criminal trial---

----Motive---Scope---If the prosecution asserted a motive but failed to prove the same then such failure on the part of the prosecution might be reacted against a sentence of death passed against a convict on a capital charge.

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 rel.

(f) Appeal against acquittal---

----Double presumption of innocence---Interference---Scope---Interference in appeal against acquittal was very narrow and there was a double presumption of innocence---Court generally would not interfere with the judgment of acquittal unless the reasoning in the same was perverse, arbitrary, foolish, artificial, speculative and ridiculous.

State v. Abdul Khaliq and others PLD 2011 SC 554 rel.

Habibullah G. Ghouri for Appellant.

Faiz Muhammad M. Larik for the Complainant.

Aitbar Ali Bullo, D.P.G. for the State.

2021 Y L R 1137

[Sindh]

Before Irfan Saadat Khan and Muhammad Faisal Kamal Alam, JJ

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Housing and Works, Islamabad and another---Appellants

Versus

Mian KHALID MANZOOR---Respondent

High Court Appeal No. 251 of 2008, decided on 9th October, 2020.

Civil Procedure Code (V of 1908)---

----O. XX, R.5---Suit for recovery of arrears of rent---Judgment---Evidence, non-reliance on---Respondent/plaintiff was owner of premises and appellant/ defendant was tenant therein---Respondent/plaintiff on the basis of ejectment order passed by Rent Controller, filed suit for recovery of arrears of rent---Single Judge of High Court decreed the suit in favour of respondent/plaintiff---Plea raised by appellant/defendant was that judgment did not fulfil mandatory requirement of O.XX, R.5, C.P.C. as evidence brought on record was not properly discussed while deciding issues---Validity---Respondent/plaintiff could not successfully rebut testimony of witness of appellant/defendant who stated that on 29-1-2000 possession of premises was taken second time through execution proceedings of Rent Case, whereas it had already handed over to respondent/ plaintiff on 20-2-1998, therefore, finding on such issue in judgment under appeal was not correct---Appellant/defendant was liable to pay rent only for 4th and 5th floors to respondent/plaintiff---With regard to quantum of rent and other charges offer of respondent/plaintiff was not accepted and evidence brought on record was conclusive that rate of rent was Rs.5 per square foot---Appellant/ defendant was liable to pay arrears of rent for the area they had occupied---Judgment under appeal was based on averments of respondent/plaintiff and outcome of earlier rent proceedings and did not contain appraisal of evidence, therefore, did not fulfil requirement of O.XX, R.5, C.P.C., which was mandatory in nature---Division Bench of High Court modified quantum of arrears of rent in the decree passed by Single Judge of High Court---Intra Court Appeal was allowed accordingly.

Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 ref.

Bilal Khilji, Assistant Attorney General for Pakistan for Appellants.

Haad Abid for Respondent.

2021 Y L R 1150

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

Prince MUHAMMAD FAHAD THAHEEM and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petitions Nos. D-760, D-806, D-815, D-840, D-841, D-846, D-848, D-852, D-854, D-855, D-876, D-969, D-1144, D-1278, 1455, 1457, D-1586, D-1826, D-1870, D-2023, D-2151, D-2633, D-2661, D-2854, D-3609, D-5618, D-5619, D-5620 to D-5624, D-5876 and D-7718 of 2018, heard on 29th January, 2019.

Sindh Arms Act (V of 2013)---

----Ss.3, 6 & 14---Sindh Arms Rules, 2018, R. 3.8---Arms licence---Renewal---Petitioners were licence holders of prohibited bore arms and were aggrieved of notification issued by Federal Government suspending such licences---Validity---Notification whereby suspension of prohibited bore category of arms was communicated had withdrawn/lifted vide subsequent notification dated 13.12.2018, and the matter was resolved in view of S.6 of Sindh Arms Act, 2013---If licences of petitioner had expired then they had to take recourse for their renewal---Applications would be renewed by National Database and Registration Authority and processed in accordance with law after prescribed scrutiny was to be undertaken by Home Department in such regard---Constitutional petition was allowed, in circumstances.

Mohsin Qadir Shahwani for Petitioners, assisted by Hamid Ali Memon (in C.Ps. Nos.D-760, D-1278, D-1457, D-1870, D-2151, D-841 and D-876 of 2018).

Rana Sakhavat Ali for Petitioners (in C.Ps. Nos. D-2661 and D-2023 of 2018).

Abdul Moiz Jaferi for Petitioners (in C.P. No.D-840 of 2018).

Zaeem Hyder holding brief for Abid S. Zuberi for Petitioners along with Muhammad Munir Khan (in C. P. No.D-852 of 2018).

Aamir Mansoob Qureshi for Petitioners along with Zahid Abdul Kadir (in C.P. No. D-1455 of 2018).

Azmat Tufail and Mustafa Asad for Petitioners (in C.P. No.D-7718 of 2018).

Jamshed Malik for Petitioners (in C.Ps. Nos. D-848 and D-1144 of 2018).

Zulfiqar Ali Khan Jalbani for Petitioners (in C.P. No. D-5876 of 2018).

Akhtar Hussain and M. Masood for Petitioner (in C.P. No.D-969 of 2018).

Liaquat Ali Khan for Petitioners (in C.P. No.D-1826 of 2018).

Syed Mureed Ali Shah for Petitioners (in C. Ps. Nos.D-806 and D-855 of 2018).

Amar Naseer and Muhammad Asif Siddiqui for Petitioners (in C.P. No.D-5618 to D-5624 of 2018).

Mamoon Chaudhry for Petitioners (in C.P. No.D-846 of 2018).

None present for Petitioners (in C.Ps. Nos.D-854, D-1586, D-3609, D-2633 and D-2854 of 2018).

Jawad Dero, A.A.G.

Ghulam Akbar Lashari, State Counsel.

Amanullah Zardari, Deputy Secretary (Focal Person), Home Department.

2021 Y L R 1166

[Sindh ((Hyderabad Bench)]

Before Muhammad Saleem Jessar, J

ABDUL AZIZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-306 of 2019, decided on 6th April, 2020.

(a) Sindh Arms Act (V of 2013)---

----S. 23(1)(a)---Possessing unlicensed weapon---Appreciation of evidence---Benefit of doubt---Accused was involved in a case registered under Ss.379 & 34, P.P.C. and on his arrest in that case, one 30 bore pistol with five live bullets (cartridges) was recovered from his possession and he failed to produce licence for the said weapon---Record transpired that present case was off shoot of main case registered under Ss.379 & 34, P.P.C. in which the accused and co-accused had already been acquitted of the charge---Admittedly, when an accused had been acquitted in the main case, he would be entitled to be acquitted in a case which was off shoot of the main case---Record showed that the Investigating Officer had sent the case property i.e. firearm weapon to the Ballistic Expert with a delay of about six days which was fatal to the prosecution case, as it created doubt in the veracity and credibility of such recovery, so also the report of the ballistic expert---Defence objected that the complainant himself conducted entire investigation of the case---Such conduct of the Police Official had not been appreciated---In such an eventuality, Investigating Officer could not be expected to perform his duties as an impartial and fair Investigating Officer---Moreover other prosecution witnesses, also being Police Officials and his subordinates, could not be expected to give evidence like an independent witnesses and they might be under influence of his superior(s)---Circumstances established that the prosecution had failed to prove the charge against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Manjhi v. The State PLD 1996 Kar. 345; Zaffar v. The State 2019 PCr.LJ Note 164; Zaffar v. The State 2019 PCr.LJ Note 164 and Abdul Rehman v. The State 2019 PCr.LJ 875 ref.

Yasir Chaudhry v. The State 2012 MLD 1315; Samandar alias Qurban and others v. The State 2017 MLD 539; Yaqoob Shah v. The State 1995 SCMR 1293 and Ghulam Hussain and 2 others v. State 1998 PCr.LJ 779 rel.

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

----Art. 117---Burden of proof---Scope---Prosecution was bound under the law to prove its case against the accused beyond any shadow of reasonable doubt---No such duty is cast upon the accused to prove his innocence.

(c) Criminal trial---

----Conviction---Scope---Conviction must be based and founded on unimpeachable evidence and certainty of guilt---Any doubt arising in the prosecution case must be resolved in favour of the accused.

Wazir Muhammad v. The State 1992 SCMR 1134 and Shamoon alias Shamma v. The State 1995 SCMR 1377 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---Accused could not be deprived of benefit of doubt merely because there was only one circumstance which created doubt in the prosecution story.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Taj Muhammad Qaimkhani for Appellant.

Shahid Ahmed Shaikh, D.P.G. Sindh for the State.

2021 Y L R 1194

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi, J

Mst. TAHMINA ANSARI---Petitioner

Versus

RAFIQUE AHMED alias GULZAR LAKHO and 3 others---Respondents

Constitution Petition No. S-827 of 2019, decided on 29th October, 2020.

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

----Ss. 7 & 25---Custody of minor---Hizanat---Gender of the child---Scope---Welfare of the minor---Financial status of mother---Effect---Father sought the custody of the all (four) children residing with their mother, contending that he was maintaining the children since their birth---Guardian Court granted custody of two female children to the mother and handed over custody of two male children to the father---Contention of the petitioner/mother was that both the Courts below had wrongly handed over custody of male minors to their father/respondent--- Validity--- Welfare of the minor would always be the paramount consideration rather a decisive factor, however, the poverty of mother alone would not be sufficient to hold her disentitled for custody of minor as legally the burden to maintain the child was on the father---Even physical disability of mother would not be sufficient to hold her disentitled from custody of child--- Both parents, in the present case, were fit for the custody of minors hence, prima facie, the decisive factor was that of Hizanat because of which the custody of male-children had been given to father while that of female-children had been given to mother---Though rules of personal law were subservient to the welfare of the minor but said principle itself spoke that a departure thereto would come into play when the welfare of minor was likely to prejudice because of fitness of a parent---In the present case, remaining of the child with any of parents was not likely to prejudice the welfare of the minor---Even the petitioner had admitted that both the parties were residing in the same street and the children had been visiting the house of each party without hindrance---Petitioner was not legally justified, under the circumstance, to question the custody of remaining children with the father/respondent, who was entitled for such custody of male children---Record revealed that ,due to love and affection of children, the father had not contracted second marriage---Even the minors had not made any complaint against the father regarding non-maintenance by him before the Appellate Court as well as High Court---Courts below had also provided complete mechanism on the special occasions for assuring the love and company of both the parents---No illegality or infirmity was found in the impugned judgments and decrees passed by both the Courts below---Constitutional petition was dismissed, in circumstances.

Mst. Razia Bibi v. Riaz Ahmed and another 2004 SCMR 821; Mst. Mubeena v. Raja Muhammad and another PLD 2020 SC 508 and Firdous Iqbal v. Shafaat Ali and others 2000 SCMR 838 ref.

(b) Islamic law---

----Right of hizanat---Fitness of the parent---Welfare of the minor---Gender of the child---Scope---Legitimate child could not come into existence without parents so love, affection and care of both the parents always were in the best interest of the child---For growth of the child, balance was always to be maintained while making decision in the matter(s) of custody of minor---Rule of Muslim law had recognized the right of Hizanat which itself indicated that the gender as well as the age of child was to be considered in matters of his/her custody---Said rule needed to be given weight unless the circumstance otherwise made applicability thereof as against the welfare of minor---All said aspects were always to be appreciated while making decision on the question of fitness of parents for custody of child.

Abdul Rehman Bhutto for Petititioners.

Respondent No.1 (Called absent).

Abdul Hamid Bhurgri, Additional Advocate General for Respondents.

2021 Y L R 1228

[Sindh (Hyderabad Bench)]

Before Mohammad Karim Khan Agha and Rasheed Ahmed Soomro, JJ

JANAN alias JANU and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.D-405 and Confirmation Case No.28 of 2011, decided on 2nd July, 2020.

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

----Ss. 302, 324, 353, 147, 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 duty, rioting, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Delay of about one hour in lodging the FIR---Scope---Accused were charged that they made firing upon police party, due to which one Police Official was hit and died, they also made incriminate firing in order to spread terrorism---Record showed that FIR was registered with promptitude within an hour of the incident in which the accused had been named and given specific roles and as such there was no time for the police to consult and concoct a false case---Furthermore, no enmity existed either between the complainant or the police against the accused and thus the complainant and the police had no reason to implicate the accused in a false case---Circumstances established that the prosecution had proved its case against the accused persons beyond a reasonable doubt, in circumstances---Appeal against conviction was dismissed accordingly.

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

----Ss. 302, 324, 353, 147, 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 duty, rioting, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Ocular account supported by medical evidence---Scope---Accused were charged that they made firing upon police party, due to which one Police Official was hit and died, they also made incriminate firing in order to spread terrorism---In the present case, ocular account had been furnished by four eye-witnesses including complainant---Statements of said eye-witnesses were found to be fully corroborative and reliable, trustworthy and confidence inspiring especially in terms of correctly identifying the accused as some of the persons who committed the murder of the deceased by shooting him with their Kalashnikov and pistol respectively---Medical evidence fully supported the eye-witnesses version of events---Medical Officer who carried out the post mortem of the deceased deposed that the deceased received seven firearm injuries of two different types indicating the use of two different firearms being a pistol and a Kalashnikov---At least two or three firearm injuries were at the chest region and three such injuries had burning and charring and the cause of death of the deceased was by firearm injuries all caused by bullets---All the most relevant and significant police entries were exhibited at trial in support of the prosecution version of events---All the witnesses were consistent in their evidence and even if there were some contradictions in their evidence, which were considered as minor in nature and not material and certainly not of such materiality so as to affect the prosecution case and the conviction of accused---Prosecution had proved its case against the accused persons beyond a reasonable doubt, in circumstances---Appeal against conviction was dismissed accordingly.

Ghulam Mustafa v. The State 2009 SCMR 916; Liaquat Ali v. The State 2008 SCMR 95; Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Tariq Pervez v. The State 1995 SCMR 1345; Ansar Mehmood v. Abdul Khaliq and another 2011 SCMR 713 and Ahsan Shahzad and another v. The State and others 2019 SCMR 1165 ref.

Muhammed Ilyas v. State SCMR 2011 and Zakir Khan v. State 1995 SCMR 1793 rel.

(c) Criminal trial---

----Witness--- Statement of one eye-witness---Scope---Conviction could be awarded if the direct oral evidence of one eye-witness was found to be reliable, trustworthy and confidence inspiring.

Muhammad Ehsan v. The State 2006 SCMR 1857 and Niaz-Ud-Din v. The State 2011 SCMR 725 rel.

(d) Criminal trial---

----Witness---Police witnesses---Reliance---Scope---Police witnesses are as reliable as any other witness unless any ill will or enmity had been attributed to them.

Zafar v. State 2008 SCMR 1254; Riaz Ahmed v. State 2004 SCMR 988 and Muhammed Hanif v. State SCMR 2003 1237 rel.

(e) Criminal trial---

----Witness---Relative and interested witnesses--- Reliance--- Scope--- Simply because a witness was related did not make him an interested witness and unreliable, unless he had reason to falsely implicate the accused or he was biased, partisan or inimical to the accused.

Ijaz Ahmad v. The State 2009 SCMR 99 rel.

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

----Ss. 302, 324, 353, 147, 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 duty, rioting, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Recovery of weapons, crime empties and motor bike on the pointation of accused persons---Scope---Accused were charged that they made firing upon police party, due to which one Police Official was hit and died, they also made incriminate firing in order to spread terrorism---Record showed that the Kalashnikov being the murder weapon used by accused was recovered on his pointation hidden in a graveyard, which only accused and not the police could have known about and as such there was no question of the Kalashnikov being foisted on him---Likewise the recovery of the pistol which was used by co-accused to murder the deceased was recovered on his pointation in the same secret place---Some of the empties, which were recovered from the scene of the incident, when compared with the Kalashnikov and pistol, which were recovered from the accused persons respectively, matched as per a positive Forensic Science Laboratory Report---Motor bike used in the crime was recovered from the accused persons at the time of their arrest---Circumstances established that the prosecution had proved its case against the accused persons beyond a reasonable doubt, in circumstances---Appeal against conviction was dismissed accordingly.

Abdul Rasool Abbasi for Appellants.

Ms. Rameshan Oad, A.P.G. Sindh for the State.

2021 Y L R 1273

[Sindh]

Before Abdul Maalik Gaddi and Mrs. Kausar Sultana Hussain, JJ

BAPTIST---Appellant

Versus

The STATE---Respondent Special Criminal Anti-Terrorism Appeals Nos. 9 and 10 of 2020, decided on 29th July, 2020.

(a) Criminal trial---

----Witness--- Police Officials as witnesses---Reliance---Scope---Evidence of Police Officials was as good as private witness, but when the whole case of prosecution rested upon the evidence of Police Officials, who were interested in the matter, therefore, their evidence was required to be minutely scrutinized at the time of trial.

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

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possession of illegal weapons, act of terrorism---Appreciation of evidence---Contradictions in the statements of witnesses---Scope---Spy information that accused were sitting inside a graveyard having arms, police party reached there, on seeing them, accused started firing upon police with intention to kill them, in retaliation, police also fired upon the accused persons and during that encounter, one accused got injured and was arrested, one 30 bore pistol without number, loaded magazine with two live rounds and one in its chamber was recovered from the possession of accused---Complainant in his cross-examination deposed that encounter took place for about 2/3 minutes, whereas, while contradicting that fact, witness in his cross-examination deposed that encounter took place for about 10/15 minutes, which created doubt in the prosecution case---Complainant in his cross-examination deposed that it took 10 to 20 minutes to complete the formalities at the place of incident, while contradicting that fact, witness in his cross-examination deposed that it took one hour to one and half hour to complete the formalities at the place of incident---Complainant in his evidence deposed that he had taken the accused to hospital and after his treatment, the accused and the case property were at police station and he lodged FIRs at 10:30 p.m. and 10:40 p.m.---Medico-Legal Officer while contradicting that fact, in his evidence deposed that at about 10:40 p.m. injured was brought by the complainant---Said fact also gave serious joltto the prosecution story as it was impossible for complainant to be present at two places in one time and that fact also showed that perhaps the incident had not taken in a fashion as stated in FIR---Police Constable/witness in his examination-in-chief deposed that their statement under S.161, Cr.P.C. statements were recorded at police station, while contradicting that fact, in cross-examination, he deposed that their statements under S.161, Cr.P.C. were recorded by Police Official at place of incident at about 11:15 p.m.---Said fact also created doubt in the prosecution story---Circumstances established that the prosecution had failed to prove the case against the accused beyond the shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Criminal Procedure Code (V of 1898), S. 103---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possession of illegal weapons, act of terrorism---Appreciation of evidence---Non-association of private witnesses---Scope---Spy information that accused were sitting inside a graveyard having arms, police party reached there, on seeing them, accused started firing upon police with intention to kill them, in retaliation, police also fired upon the accused persons and during that encounter, one accused got injured and was arrested, one 30 bore pistol without number loaded magazine with two live rounds and one in its chamber was recovered from the possession of accused---Record showed that the place of incident from where the present accused was arrested was a thickly populated area---Admittedly, at the time of incident many people were available there, but they had not been joined as witness of the recovery proceedings---Prime duty of the police was to prefer a private witness, if available at the spot, to maintain transparency and fairness of the alleged recovery and to ensure during the course of the administration of justice that there must be a plausible explanation for non-association of witnesses from public---In the present case, no valid reason or plausible explanation had been furnished by the prosecution for non-association of independent witnesses by the police when independent people were available at the place of recovery, which was a thickly populated area; thus, on that ground false implication of the accused could not be ruled out---Circumstances established that the prosecution had failed to prove the case against the accused beyond the shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possession of illegal weapons, act of terrorism---Appreciation of evidence---Benefit of doubt---Spy information that accused were sitting inside a graveyard having arms, police party reached there, on seeing them, accused started firing upon police with intention to kill them, in retaliation, police also fired upon the accused persons and during that encounter, one accused got injured and was arrested, one 30 bore pistol without number loaded magazine with two live rounds and one in its chamber was recovered from the possession of accused---Allegedly, co-accused at the time of incident was also available at the place of incident and made firing upon the police, but Trial Court on the basis of same set of evidence/witnesses acquitted him through impugned judgment, but convicted the accused without assigning any valid reason---Prosecution witnesses if disbelieved for co-accused, could not be relied upon with regard to the present accused, unless he was corroborated by evidence which came from unimpeachable independent source which was lacking in the present case---Circumstances established that the prosecution had failed to prove the case against the accused beyond the shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Asif v. The State 2017 SCMR 486 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---Benefit of each and every doubt is to be extended to the accused---Single reasonable doubt qua the guilt of the accused is sufficient to acquit him of the charge.

Ayub Masih v. The State PLD 2002 SC 1048 rel.

G.M. Korai for Appellant (in both Appeals)

Ali Haider Saleem, Additional Prosecutor General, Sindh for the State.

2021 Y L R 1309

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi, J

NAZIR AHMED---Applicant

Versus

The STATE---Respondent Criminal Bail Application No. S-404 of 2020, decided on 4th November, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Bail, refusal of---Accused was charged that he and co-accused committed murder of father of complainant by firing---Record showed that first bail application was declined by the court on merits, thereafter, the accused moved his second bail application before the trial court on the ground of hardship which was declined, hence the present bail application on the ground of hardship---Record showed that prosecution examined two witnesses but their cross-examination was reserved on the adjournment applications submitted by the defence counsel---Record further revealed that the witnesses were in attendance but their cross-examination was not conducted, which caused delay in conclusion of the trial---Prima facie, in the present case conduct of the accused by moving frequent adjournments, caused delay in conclusion of the trial as such applicant was not entitled for grant of bail on the ground of statutory delay/ hardship---Application for grant of bail was dismissed, in circumstances.

Adnan Prince v. The State through P.G., Punjab and another PLD 2017 SC 147 and Tallat Ishaq v. National Accountability Bureau through Chairman, and others PLD 2019 SC 112 ref.

Babar Hussain v. The State and others 2016 SCMR 1538 rel.

Athar Abbas Solangi for Applicant.

Ghulam Rasool Narejo for the Complainant.

Muhammad Noonari, Deputy Prosecutor General for the State.

2021 Y L R 1363

[Sindh]

Before Mrs. Kausar Sultana Hussain, J

Shaikh FARRUKH HUSSAIN---Petitioner

Versus

Mst. FARAH NISHAT and 3 others---Respondents

Constitutional Petition No. S-1765 of 2018, decided on 8th December, 2020.

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

----S. 5, Sched.---Maintenance for minor---Quantum of---Financial status of father---Tenure (starting date) of fixation of maintenance allowance---Scope---Appellate Court modified the starting date of fixation of maintenance allowance for minor from date of institution of suit to his date of birth---Petitioner/father (a school teacher by profession) invoked constitutional jurisdiction to assail order passed by the Appellate Court and also sought reduction in quantum of maintenance allowance for minor---Held, that mother had filed suit for maintenance allowance for minor within three years of minor's birth, therefore, the Appellate Court had rightly granted his maintenance allowance from his date of birth---Petitioner had produced his salary certificate in his evidence which showed that he was getting monthly salary of Rs. 7000/- as a school teacher---Mother of minor had not brought any documentary evidence on record, which could prove that father was earning more than what he disclosed---Father though was bound to maintain his child but in a manner befitting his status and financial condition---Record revealed that the petitioner had never avoided to pay maintenance allowance for the minor---Keeping in view of meager salary amount of the father, High Court reduced the maintenance allowance for minor from Rs. 5000/- to Rs. 3000/ for the first three years of age of the minor and directed that the amount previously sent by father for the minor through money-orders, (receipts thereof available on record) whether acknowledged or not, be adjusted in past maintenance of minor---Impugned judgment and decree passed by the Appellate Court was modified accordingly---Constitutional petition was disposed of

(b) Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Maintenance for minor---Payment, proof of---Held, that money-order receipts were sufficient documentary evidence to prove that payment had been made to the recipient by the sender/father.

Muhammad Imran Khan for Petitioner.

Nemo for Respondents.

2021 Y L R 1392

[Sindh]

Before Abdul Maalik Gaddi and Mrs. Rashida Asad, JJ

SHABBIR AHMED---Applicant

Versus

The STATE---Respondent Criminal Bail Application No. 692 of 2020, decided on 15th May, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Sindh Arms Act (V of 2013), S. 23(1)(a)---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Anti-Terrorism Act (XXVII of 1997), S. 7---Possession of illegal weapons, explosives and grenade, act of terrorism---Bail, disposal of---Allegedly, the statements of prosecution witnesses and statements of accused involved in the case had been recorded---Further proceedings could not be taken place as the Presiding Officer of the trial court was on earned leave and trial was being delayed---Accused was also chronic heart patient with high blood pressure and was not being properly treated inside the jail---Accused would be satisfied and would not press the bail application, if the matter was transferred to other court for its disposal---Scope---Record showed that accused was arrested in that case on 11.3.2015 and since then he was behind the bars, almost more than four (4) years had been passed, but trial had still not been concluded---Expeditious and fair trial was fundamental right of the accused as envisaged under Art. 10A of the Constitution---Delay in disposal of case and imparting justice could reduce the confidence of public in judicial system and would cause frustration and anguish---Object of criminal prosecution was not to punish undertrial prisoners for alleged offence and accused could not be detained for an indefinite period without remedy of trial---Present matter along with connected matters was withdrawn from the file of Anti-Terrorism Court and transferred to the other Anti-Terrorism Court for their disposal according to law---Transferee Court was directed to proceed those cases and decide the same as early as possible as per law---Since, the accused was facing heart disease, which was not disputed, therefore, under the circumstances, Superintendent, Central Prison, was also directed to provide all medical facilities to the accused inside jail and if his treatment was not possible inside the jail then he might be referred to any government recognized hospital for his treatment, but as per law---Bail application stood disposed of in the above terms

Raja Hassan Nawaz for Applicant.

2021 Y L R 1406

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Fahim Ahmed Siddiqui, JJ

FAIQ ALI and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Constitutional Petitions Nos. D-546 of 2016, D-1674 of 2016, D-625 of 2017, D-2032 of 2016, D-2875 of 2015, D-470, D-559, D-650, D-961, D-1515, D-1627, D-1630, D-1633, D-1638, D-1660, D-1662, D-1663, D-1670, D-1704, D-1736, D-1863, D-1943, D-2890, D-3124, D-3287, D-3459, D-3460, D-3461, D-3462, D-3464, D-764 of 2016 and D-772 of 2017, decided on 12th September, 2017.

Criminal Procedure Code (V of 1898)--

----S. 498---National Accountability Ordinance (XVIII of 1999), Ss. 9, 18(5) & 19--- Corruption and corrupt practices---Power to call for information---Pre-arrest bail, confirmation of---Further inquiry---Accused were involved in preparing bogus bills and issuing cheques to various contractors who did not perform any work---Record showed that all the accused persons were regularly attending High Court as well as the Trial Court---No complaint from the prosecution side that during the pendency of said petitions, any of the accused persons had ever misused the concession of interim pre-arrest bail granted to him---Evidence against the accused persons depended on documentary evidence, the relevant record and documents were in custody of the prosecution and as such there was no apprehension of the tampering with the prosecution evidence---Accused persons were on interim pre-arrest bail since a long time and after filing of reference the trial had been initiated, as such the accused persons were no more required for the purpose of investigation---Grant of pre-arrest bail could not be with-held on the ground of commencement of trial or likely of its being concluded in near future, if otherwise accused had made out a case for grant of bail within the meaning of S.497(ii), Cr.P.C. because the law did not provide any compensatory mechanism for unjustified detention of one day even---Interim relief of pre-arrest bail granted to the accused persons was confirmed, in circumstances.

Rana Muhammad Arshad v. Muhammad Rafique and others PLD 2009 SC 427; Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Syed Khalid Hussain Shah's case 2014 SCMR 12 rel.

Petitioners Abdul Hafeez Leghari, Abdul Wahid, Sanaullah Junejo, Mahboob Ali Buriro, Sham Ahmed Sohu, Abdul Waheed, Muhammad Ramzan, Farrrukh Munir, Syed Mehdi Ali Shah, Shahzad Bhutto, Abdul Latif Qureshi, Muhammad Atif, Muhammad Ishaque, Muhammad Jameel, Muhammad Waleed, Javed Ahmed Shaikh, Liaquat Ali Sher Baloch, Jahanzaib Babar, Taj Muhammad, Sh. Qadir, Mahrab Imtiaz, Harish Kumar, Atique Abdul Hameed, Sh. Muhammad, Ishaque, Faique Ali, Abbas Hussain, Saiful Malook Samaro, Muhammad Imran, Muhammad Murad, Asadullah Solangi, Ghulam Muhammad Memon and Abdul Raheem Burfat are present on bail.

Ishrat Ali Lohar for Petitioner.

Riazat Ali Sahar for Petitioner.

Jangu Khan, Special Prosecutor NAB along with Sarwan Ahmed A.D./I.O. NAB(K) for Respondents.

2021 Y L R 1440

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

Mst. TASLEEM KAUSAR and others---Applicants

Versus

The STATE---Respondent Criminal Bail Applications Nos. S-316, 317, 318 and 319 of 2020, decided on 27 July, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss.419, 420, 468, 471 & 109---Cheating by personation, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment---Ad interim pre-arrest bail, confirmation of---Further inquiry---Allegations against the accused were that they, during disbursement of Benazir Income Support Program, had fraudulently received funds by concealing themselves as government servants---Admittedly, the applicants-accused were government servants and were ladies, therefore, question of their tampering with prosecution evidence, which were in possession of prosecution itself, did not arise---Offence as shown pertained to year 2011/2019, whereas FIRs had been registered on 12.5.2020---Punishment provided by law for the legal provisions applied in the FIRs was also not beyond the scope of prohibitory clause, hence on that score alone case against the accused required further probe into their guilt---Interim pre-arrest bail earlier granted to the accused was confirmed on same terms and conditions.

Shakeel Ahmed G. Ansari for Applicants.

Abdul Rasheed Abro, Assistant Attorney General for Pakistan along with SIP Mehran Khan, I.O. of Crime No.6/2020, P.S. FISA Circle Sukkur for the State.

Munir Ahmed Siyal, Assistant Director (Legal), FIA, Sukkur.

2021 Y L R 1464

[Sindh]

Before Omar Sial and Zulfiqar Ali Sangi, JJ

ALEEMUDDIN and others---Appellants

Versus

The STATE (NAB) through Chairman, NAB (K) Sindh---Respondent

Criminal Accountability Appeals Nos. 29, 30, 31 and C. Ps. Nos. D-6233 and D-6331 of 2018, decided on 17th September, 2020.

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

----S. 9(a)(ix)---Qanun-e-Shahadat (10 of 1984), Arts. 72 & 78---Cheating members of public at large---Appreciation of evidence---Documentary evidence--- Signature, proof of---Producing and proving of documents---Accused were alleged to have sold government land to 45 affectees/ allottees---Accountability Court convicted the accused persons and sentenced them to imprisonment as well as fine was imposed--- Validity--- Production of documents and proof of documents were two different subjects---Documents could be produced in evidence that was always subject to proof as required under Art. 78 of Qanun-e-Shahadat, 1984---Forensic expert verified signature of accused on the basis of documents produced by NAB, which were obtained from Banks---Accused persons were not produced before forensic experts for taking their signatures for verification, no signature of accused allegedly mentioned in agreement produced by prosecution witness was sent to handwriting expert as required under Art. 78 of Qanun-e-Shahadat, 1984---High Court set aside conviction and sentence awarded to accused persons as prosecution had failed to prove its case against accused persons beyond any reasonable doubt and they were acquitted of the charge---Appeal was allowed in circumstances.

Muhammad Ishaque Qureshi v. Sajid Ali Khan and another 2016 SCMR 192; Muhammad Akhtar v. The State 2010 PCr.LJ 374; Hyderabad Development Authority through M.D., Civic Centre, Hyderabad v. Abdul Majeed and others PLD 2002 SC 84; Rafiq Haji Usman v. Chairman, NAB and another 2015 SCMR 1575; Pakistan Engineering Consultants through Managing Partner v. Pakistan International Airlines Corporation through Managing Director and another PLD 2006 Kar. 511; Pir Mazhar ul Haq and others v. The State through Chief Ehtesab Commissioner, Islam PLD 2005 SC 63; Syed Qasim Shah v. The State 2009 SCMR 790; Wahid Bakhsh Baloch v. The State 2014 SCMR 985; Province of the Punjab through Collector, Sheikhupura, and others v. Syed Ghazanfar Ali Shah and others 2017 SCMR 172; Muhammad Shah v. The State 2010 SCMR 1009; Azeem Khan v. Mujahid Khan and others 2016 SCMR 274; Muhammad Akram v. The State 2012 SCMR 440; Muhammad Ishaque Qureshi v. Sajid Ali Khan and another 2010 MLD 978; Muhammad Ishaque Qureshi v. Sajid Ali Khan and another 2005 SCMR 152; Muhammad Yousuf v. The State 2009 YLR 2444 and Mir Fayaz Ahmed v. The State 2010 PCr.LJ 1832 ref.

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

----S.14(c)---Onus to prove---Presumption--Shifting of onus---Principle---Initial burned of proof always rests on prosecution---Burden to prove all ingredients of charge always remains on prosecution and it never shifts on accused, who can stand on plea of innocence assail to him under law, till it is dislodged---Prosecution is never absolved from proving charge beyond reasonable doubt and burden shifts to accused only when prosecution succeeds in establishing presumption of guilt against him.

Muhammad Yaseen Khan Azad for Appellant/Petitioner (in Crl. Acctt. Appeal No.29 of 2018 and C.P. No.D-6233 of 2018).

Muhammad Ashraf Kazi and Irshad Ali Jatoi for Appellant (in Crl. Acctt. Appeal No. 30 of 2018).

Altamash Arab and Muhammad Azad Khan for Appellant (in Crl. Acctt. Appeal No. 31 of 2018 and C. P.

No.D-6331 of 2018.

Zahid Hussain Baladi, Special Prosecutor NAB.

2021 Y L R 1476

[Sindh]

Before Arshad Hussain Khan, J

Mrs. ANJUM ARA---Plaintiff

Versus

SHABBIR A. HALAI---Defendant Suit Nos. 90 and 443 of 2004, decided on 20th March, 2020.

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

----Ss. 12, 39, 42 & 54---Transfer of Property Act (IV of 1882), S. 53-A---Suit for specific performance of agreement, cancellation of document, declaration and injunction---Part performance---Property documents, non-completion of---Recovery rentals---Plaintiff entered into agreement to sell with defendant, who, after making part payment received the possession and constructed building over the same---Plaintiff sought cancellation of agreement on the plea that defendant failed to make balance payments in time---Defendant also filed suit for specific performance of agreement to sell---Validity---Held, it was obligation of plaintiff as vendor to obtain completion certificate and B-Lease from Defence Housing Authority---Plaintiff neither obtained completion certificate nor B-Lease from concerned authorities and as such failed to make out marketable title of property in question---Conveyance deed could not be registered unless B-Lease, which was a document by Pakistan Defence Officers Housing Authority was to grant 99 years' lease in favour of allottees---Defendant was put into possession of suit property upon making part sale consideration---Defendant had acquired certain rights as after having made investment, defendant put suit property in habitable condition---Possession with defendant was protected in terms of S.53-A of Transfer of Property Act, 1882---Defendant was not at fault in completing transaction but he had started residing in suit property without making balance sale consideration either to plaintiff or depositing the same in Court, therefore, he was liable to pay rentals of each month---Suit was dismissed accordingly.

Anwar Sajjid v. Abdul Rashid Khan and another 2008 YLR 1239; Saeed Naseem Cheema v. Mrs. Rukhsana Khan 2005 YLR 1905; Mst. Bidhai v. Muhammad Suleman through legal heirs 2006 YLR 1520; Muhammad Yaqub v. Muhammad Nasrullah Khan and others PLD 1986 SC 497; Raja Nasir Khan v. Abdul Sattar Khan and another PLD 1998 Lah. 20; Lal Khan through legal heirs v. Muhammad Yousaf through legal heirs PLD 2011 SC 657; Faiz Ahmad v. Muhammad Sharif and 6 others 2005 MLD 298; Rab Nawaz and 13 others v. Mustaqeem Khan and 14 others 1999 SCMR 1362; Ayub Ali Khan and others v. Brif. Gul Sher Khan and others 1989 MLD 261; Dr. S. M. Rab v. National Refinery PLD 2005 Kar. 478; Abdullah Bhai v. Ahmed Din PLD 1964 SC 106; West Pakistan Tanks Terminals (Pvt.) Ltd. v. Collector [Appraisement] 2007 SCMR 1318; Hamood Mehmood v. Mst. Shabana Ishaque 2017 SCMR 2022; Commissioner of Income Tax, Peshawar v. Messrs Siemen A.G. PLD 1991 SC 368; Badruddin H. Mavani v. Government of Pakistan and another 1982 CLC 44; Mst. Batul and others v. Mst. Razia Fazal and others 2005 SCMR 544; Bashir Ahmed v. Mst. Shahzadi Begum 1985 SCMR 1335; Pakistan Railways through AGM [Traffic] Lahore v. Messrs Four Brothers International (Pvt.) Ltd. and others PLD 2016 SC 199; Seth Essa Bhoy v. Saboor Ahmed PLD 1973 SC 39; Nathulal v. Phoolchand AIR 1970 SC 546; Sant Lal v. Shyam Dhawan AIR 1986 Delhi 275; Syed Hakeem Shah [deceased] through LRs and others v. Muhammad Idrees and others 2017 SCMR 316; Abdul Kasmir v. Muhammad Shafi and another 1973 SCMR 225; Ata-ur-Rehman v. Faheem Ahmed 2009 YLR 1672 and Haji Muhammad Sadiq v. Haji Syed Muhammad Sharif and others 1997 SCMR 1994 ref.

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

----S.55---Time as essence of contract---Principle---Intention to make time as essence of contract must be expressed in unmistakable language---As such the same may be inferred from what passed between parties before but not after the contract was made---Mere mention of a specified period in an agreement for completion of sale does not make time as essence of contract---In contracts of sale of immovable property, ordinarily time is not considered to be of the essence of contract unless it was expressly intended by parties and terms of contract do not permit any other interpretation.

Mst. Amina Bibi v. Mudsar Aziz PLD 2003 SC 430 rel.

Badar Alam along with Kashif Badar for Plaintiff (in Suit No.90/2004 and for Defendant in Suit No.443/2004).

Abdul Qadir Khan along with Syed Nauman Zahid Alvi for Plaintiff (in Suit No.443/2004 and for Defendant in Suit No.90/2004).

2021 Y L R 1527

[Sindh]

Before Syed Hassan Azhar Rizvi and Zulfiqar Ahmad Khan, JJ

MAJEED & SONS STEEL (PVT.) LTD. through Authorized Representative

and 7 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Energy and through Secretary, Ministry of Finance and 2 others---Respondents

C. P. No. D-2253 of 2020 along with C. Ps. Nos.D-2287, 2291, 2293, 2295, 2296, 2297, 2298, 2300, 2301, 2304, 2305, 2306, 2309, 2310, 2312, 2313, 2314, 2315, 2323, 2324, 2325, 2326, 2327, 2328, 2329, 2332, 2334, 2335, 2336, 2337, 2338, 2339, 2340, 2341, 2342, 2343, 2344, 2345, 2349, 2351, 2352, 2353, 2354, 2355, 2356, 2357, 2358, 2359, 2360, 2361, 2362, 2363, 2364, 2365, 2366, 2369, 2370, 2371, 2374, 2381, 2382, 2383, 2385, 2386, 2392, 2393, 2394, 2395, 2396, 2397, 2398, 2399, 2400, 2406, 2410, 2412, 2424, 2435, 2436, 2438, 2446, 2451, 2466, 2493, 2522, 2579, 2581, 2584, 2600, 2613, 2624, 2627, 2634, 2635, 2638, 2684, 2698, 2700, 2704 and 2705, all of 2020, decided on 28th September, 2020.

(a) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----Ss.7(3) & 31---National Electric Power Regulatory Authority (Tariff Standards and Procedures) Rules, 1998, R. 17(3)---Notifications SRO 12(I)/2019 dated 1-1-2019, SRO 575(I)/2019, dated 22-5-2019 & SRO 810(I)/2019 dated 12-7-2019---Constitution of Pakistan, Art. 199---Constitutional petition---Electricity tariff--- Determination---Retrospective effect---Off peak hours tariff---Petitioners were industrial consumers of large scale industrial pro-ducts--- Petitioners assailed corrigendum dated 22-1-2020 withdrawing and modifying electricity tariff retrospectively vide notification SRO 575(I)2019, dated 22-5-2019---Validity---Subsidy of Government of Pakistan figured alongside the determined tariff which subsidies were already granted and made part of K-Electric's bills after issuance of Notification SRO 12(I)/2019 dated 1-1-2019---Notification SRO 575(I)/2019 dated 22-5-2019 was not an outcome of determination per se as it only printed earlier determined tariff alongside Government of Pakistan's subsidized tariff---If at any point in time any entry in column of variable charges was attacked, tariff was to fall back to respective and corresponding entry in column of fixed charges and the same was outcome of actual determination---Amount in the column of variable charges could never be higher than those in the column of fixed charges---High Court declared corrigendum dated 22.1.2020, as illegal, void, issued in excess of authority and the same was quashed---High Court restrained K-Electric from enforcing the same in any manner whatsoever as it resulted in determination higher than National Electric Power Regulatory Authority's determined tariff and it was not correcting any error---High Court directed that industrial consumers of K-Electric to be charged tariff as per column of fixed charges of Notification SRO 575(I)/2019 dated 22.5.2019 as determined vide determination dated 5.7.2018 in respect of variable 'off-peak hours' charges and column of uniform tariff in respect of variable 'peak hours' charges as long as subsidy for 'peak hours' provided through Notification SRO 12 (I) /2019 dated 1-1-2019 held the field, as at any point in time when 'peak hour' subsidy was withdrawn, values shown in column of variable charges had fallen back to uniform charges unless any new determination had taken the field---Government of Pakistan was solely competent to provide or withdraw any subsidy, therefore, Notification SRO 810(I)/20219 dated 12-7-2019 was lawful---High Court directed the authorities to refund or adjust towards future bills, the sums charged and paid by petitioners per rates specified in the corrigendum after deducting rates provided in column of fix charges of Notification SRO 575(I)/20219 dated 22-5-2019 as determined vide determination dated 5-7-2018 in respect of variable 'off-peak hours' charges---High Court further directed the authorities to reissue new bills to those petitioners who did not pay any previous bills of ISPA component for period July-2019 to January-2020, on the basis of values provided in fixed charges of Notification SRO 575(I)/2019 dated 22-5-2019 as determined vide determination dated 5-7-2018 in respect of variable 'off-peak hours' charges---High Court also directed the authorities to give reasonable period to make payments---Constitutional petition was allowed accordingly.

OGRA through Secretary v. Messrs Midway-II, CNG Station and others 2014 SCMR 220; Al-Noor Sugar Mills Limited and another v. Federation of Pakistan and others 2018 PTD 2082; Muhammad Rafiq and others v. Federation of Pakistan and others 2014 PTD 1881; Secretary to the Government of Pakistan Ministry of Finance and others v. Muhammad Hussain Shah and others 2005 SCMR 675; Government of KPK and others v. Khalid Mehmood 2012 SCMR 619; Messrs Army Welfare Sugar Mills Association Limited and others v. Federation of Pakistan and others 1992 SCMR 1652; Messrs Abdul Ghafoor Furnace v. WAPDA and others 2005 YLR 442; Messrs Trade Link Corporation and others v. Federation of Pakistan and others 2016 PTD 1096; The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207; Government of the Punjab, Education Department through Secretary Higher Education, Punjab Civil Secretariat Lahore and others v. Muhammad Imran and others 2019 SCMR 643; Star Textile Mills Ltd. and another v. Government of Sindh and others 2002 MLD 1608; Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue and others 2002 SCMR 312; Messrs Bolan Industries (Pvt.) Ltd. through Managing Director and others v. Water and Power Development Authority (WAPDA) through Chairman and others PLD 2014 Bal. 173; OGRA through Secre-tary v. Messrs Midway-II, CNG Station and others 2014 SCMR 220; Dossani Travels Pvt. Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd. and others PLD 2014 SC 1; Abdul Sami Memon and 8 others v. Federation of Pakistan through Secretary Establishment and 5 others 2020 PLC 125 and Government of Pakistan v. Sikandar Khan and others PLD 1987 Pesh. 68 ref.

(b) Maxim---

----Aequitas est quasi aequalitas---Connotation---Equality is equity---When there are no reasons for any other basis of division of property, those entitled to it should share it equally.

For petitioners:

Haider Waheed, Muhammad Ameen Bandukda, Syed Mohsin Ali, Omer Soomro, Shahbakht Pirzada, Maqbool Hussain Shah, Abdul Sattar Pirzada, Khawaja Aizaz Ahsan, Rajindar Kumar, Obaid-ur-Rehman Khan, Salman Yousuf, Ali Kambar Askary, Aijaz Ali, Asad Raza Khan, Qazi Umair Ali, Anas Makhdoom, Ahmed Faraj, Darvesh K. Mandan, Ahmed Madni, Naeem Suleman, Arshad Hussain Shahzad, Manzar Hussain, Abdul Ghaffar Khan, Farhan-ul-Hasan Minhas, Ovais Ali Shah, Sami-ur-Rehman Khan, Faiz Durrani, Shariq Razzaq, Syed Irshad ur Rehman, Muhammad Waleed, Hassan Khurshid Hashmi, Rajesh Kumar Khagaija, Nasir Elahi Siddiqui, Ms. Navin Merchant, Sofia Saeed Shah, Zoha Sirhindi, Tehmina Ashraf and Samia Faiz Durrani.

For respondents:

Usman Hadi, D.A.G. along with Ms. Durdana Tanveer, Assistant Attorney General.

Kashif Hanif for NEPRA along with Atif Hanif.

Abid S. Zuberi, Ayan Mustafa Memon and Ali Zuberi for K-Electric and Muhammad Abdullah, Iftikhar Ahmed and Zulfiqar Ali Mirjat for K-Electric in some petitions.

Syed Amir Ali Shah Jeelani for Lasbela Industrial Estates Development Authority.

2021 Y L R 1556

[Sindh (Larkana Bench)]

Before Khadim Hussain M. Shaikh, J

KHADIM ALI---Appellant

Versus

HAKIM ALI and another---Respondents

Criminal Acquittal Appeal No. S-21 of 2017, decided on 23rd April, 2020.

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

----Ss. 3 & 4---Criminal Procedure Code (V of 1898), S. 417(2)---Appreciation of evidence---Appeal against acquittal---Illegal dispossession---Allegation against the accused was that he along with 10 unknown persons dispossessed the complainant illegally on gunpoint from his agricultural land---Record showed that complainant claimed to have purchased land from different persons on different dates---Descriptions and boundaries of the said areas from the survey numbers allegedly purchased by the complainant were nowhere mentioned either in the complaint or even in the evidence led by the prosecution and thus, the identity of the subject land could not be made---Complainant had not produced any document to show that he ever remained in possession of his share in the aforesaid survey numbers---Accused also claimed himself to be the co-sharer in the disputed property---Parties were disputing over the subject property and the accused claimed to be in possession of the disputed property prior to the alleged date of dispossession shown by the complainant, who had not substantiated his case as set out in his complaint by any evidence worth consideration---No case attracting the provisions of Illegal Dispossession Act, 2005 had been made out by the complainant and the matter was purely of civil nature, as the claim of the parties regarding ownership and possession over the disputed property could only be sifted by adducing evidence of the nature before the court of plenary jurisdiction with consequential relief of possession in appropriate proceedings---Circumstances established that the impugned acquittal judgment was apt to the facts and circumstances of the case, which suffered from no illegality or for misreading or non-reading of the evidence thus did not call for any interference---Appeal was dismissed accordingly.

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

----Ss. 3 & 4---Criminal Procedure Code (V of 1898), S. 417(2)---Appeal against acquittal---Appreciation of evidence---Illegal dispossession---Contradictions in the statements of witnesses---Scope---Allegation against the accused was that he along with ten unknown persons dispossessed the complainant illegally on gunpoint from his agricultural land---Complainant claimed to have cultivated the subject land with wheat crop after its purchase through his farmer---Complainant had deposed that on the day of incident he, his hari and a witness were present when respondent along with ten unidentified armed persons had come over the land and had taken away the wheat crop and dispossessed him from the land---Hari/witness had stated that accused along with ten unidentified persons came over the land and said to the complainant that his khata/entry had been cancelled by the EDO Revenue and he forcibly took away wheat produce---Said witness did not utter a single word about dispossession of the complainant from the subject land and even he had not shown the presence of witness---Witness had also stated that accused had taken away the wheat crop in tractor, but he had also not stated a single word about dispossession of the complainant from the subject land---Complainant had also made certain dishonest improvements and material admissions adverse to his case---Appeal against acquittal was dismissed.

Imdad Ali Mashori for Appellant.

Ali Anwar Kandhro, Additional Prosecutor General for the State.

Habibullah G. Ghouri for Respondent No.1.

2021 Y L R 1594

[Sindh (Hyderabad Bench)]

Before Mohammad Karim Khan Agha and Rasheed Ahmed Soomro, JJ

MUHAMMAD ADNAN---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-459 of 2010 and Confirmation Case No. D-24 of 2010, decided on 2nd July, 2020.

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

----Ss. 302, 324, 459, 201 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, criminal trespass, causing disappearance of evidence, common intention---Appreciation of evidence---Delay of about six hours and forty five minutes in lodging the FIR---Scope---Accused was charged for committing murder of son of the complainant and injuring two other persons by inflicting hammer blows---Record showed that incident took place at 5:30 a.m.---Record showed that matter was reported at police check post promptly which was closed and thereafter the complainant had to arrange the transportation of the dead body and injured to hospital and thereafter he lodged the FIR, therefore, delay in lodging the FIR could not be considered to be fatal to the prosecution case.

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

----Ss. 302, 324, 459, 201 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, criminal trespass, causing disappearance of evidence, common intention---Appreciation of evidence---Last seen evidence---Scope---Accused was charged for committing murder of son of the complainant and injured two other persons by inflicting hammer blows---Admittedly, there was no eyewitness to the murders---Complainant produced last seen evidence and stated that on the day of incident he and his cousin went to the house of deceased to inform him about a sugar cane trolly being ready---Complainant had seen accused coming out of the house of deceased with a hammer in his hand who ran away after he gave him a warning---Complainant then went inside the house and found the dead bodies and injured---Circumstances suggested that complainant was chance witness and had no reason to be present at 5:30 a.m. at the house of deceased, thus, his evidence was doubtful---Further, doubt was casted on the evidence of complainant by the fact that it was 5.30 a.m. in the morning and it was dark and not daylight and there was no source of light so how was it possible for him to recognize accused from a long distance via a fleeting glance when he only knew him as a person from the local community---Complainant was also related to the deceased and was an interested witness who according to his own FIR had enmity with the accused who had warned him to stay away, as such further doubts were created over the reliability of his evidence---Circumstances established that the prosecution had failed to prove its case beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Abdul Jabbar and another v. The State 2019 SCMR 129; Nazir Ahmad v. The State 2018 SCMR 787; Muhammad Ameer and another v. Riyat Khan and others 2016 SCMR 1233; Usman alias Kaloo v. The State 2017 SCMR 622; G. M. Niaz v. The State 2018 SCMR 506; Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652; Zafar v. The State and others 2018 SCMR 326; Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Nadeem Ramzan v. The State 2018 SCMR 149; Mubeen alias Haji Muhammad Mubeen v. The State 2006 YLR 359; Ghazanfar Ali alias Pappu and another v. The State 2012 SCMR 215; Iftikhar Ahmad v. The State 2019 SCMR 1224; Nasir Mehmood and another v. The State 2015 SCMR 423; Nasir Shah v. The State 2006 SCMR 1796; Takdir Samsuddin Sheikh v. State of Gujarat and another 2012 SCMR 1869; Muhammad Bux v. The State 2015 YLR 519 and Nadir Shah v. The State and others 2012 PCr.LJ 588 ref.

Ijaz Ahmad v. The State 2009 SCMR 99 rel.

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

----Ss. 302, 324, 459, 201 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, criminal trespass, causing disappearance of evidence, common intention---Appreciation of evidence---Unnatural conduct of complainant---Scope---Accused was charged for committing murder of son of the complainant and injured two other persons by inflicting hammer blows---Record showed that when complainant entered the house on finding his badly injured son, he did not immediately transport him to hospital for treatment so that his life could be saved but instead waited until 9:00 a.m. which was nearly 3:30 hours later---Father would have been expected to immediately took his seriously injured son to hospital without any delay---Said facts had grave doubts about the presence of complainant at the time of his apparent last seen evidence---Circumstances established that the prosecution had failed to prove its case beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Asif v. State 2017 SCMR 486 rel.

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

----Ss. 302, 324, 459, 201 & 34---Qanun-e-Shahadat (10 of 1984), Art.46---Qatl-i-amd, attempt to commit qatl-i-amd, criminal trespass, causing disappearance of evidence, common intention---Appreciation of evidence---Dying declaration, reliance on---Scope---Accused was charged for committing murder of son of the complainant and injured two other persons by inflicting hammer blows---Record showed that the deceased had fully implicated accused in the murder, however some doubts about the authenticity and reliability of said dying declaration had been seen---Dying declaration was usually given and relied upon if a person faced imminent and certain death as it was presumed that he would not make a false statement before going to meet his Maker---In the present case, deceased who made the dying declaration died approximately 6 to 7 days after he made it and as such it was doubtful whether it could be termed as a dying declaration as his statement relatively could have been easily recorded before a Magistrate under S. 164, Cr.P.C.---Circumstances established that the prosecution had failed to prove its case beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Art. 46---Dying declaration---Scope---Dying declaration was regarded as a weak piece of evidence as it was not subjected to cross-examination.

Mst. Zahida Bibi v. The State PLD 2006 SC 255 rel.

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

----Ss. 302, 324, 459, 201 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, criminal trespass, causing disappearance of evidence, common intention---Appreciation of evidence---Recovery of crime weapon on the pointation of accused---Scope---Accused was charged for committing murder of son of the complainant and injured two other persons by inflicting hammer blows---Record showed that the hammer was not recovered from accused when he was arrested on the day of the incident---According to the prosecution, accused led Investigating Officer to the hammer, on his pointation, which he had kept at his house, however, that recovery was not supported by the mashir---Said fact did not appeal to natural human conduct to keep the murder weapon being a hammer safely at home which could subsequently implicate him in the offense when accused could have easily disposed it of---Circumstances established that the prosecution had failed to prove its case beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

(g) Criminal trial---

----Benefit of doubt--- Principle---Prosecution must prove its case beyond a reasonable doubt and benefit of any doubt will go to the accused.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Syed Tarique Ahmed Shah for Appellant.

Ms. Rameshan Oad, A.P.G. Sindh for the State.

Ms. Ramesham Oad, A.P.G. for the Complainant with Complainant n person.

2021 Y L R 1608

[Sindh]

Before Fahim Ahmed Siddiqui, J

MOHAMMAD FAHIM---Applicant

Versus

MOHAMMAD FAIZ and 8 others---Respondents

Civil Revision Application No. S-100 of 1999, decided on 16th October, 2018.

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

----S. 13---Eviction petition---Relationship of landlord and tenant---Failure to prove payment of rent---Scope---Landlord assailed the ultimate dismissal of his eviction petition by the Appellate Court---Validity---Landlord had claimed ownership of property on the basis of an unregistered lease deed which was required to be registered being a compulsorily registrable document---Landlord could not establish that his predecessor enjoyed a good and transferable title over the suit property---Trial Court had relied upon that part of the deposition of tenant wherein he had stated that he had purchased the property from the father of landlord and had never remained his tenant---Trial Court had made it a great point in favour of the landlord, however, no one could establish his right solely on the ground of weakness of the case of his opponent---Deposition of tenant revealed that it could be said that he had taken possession of the property from the father of landlord but not in the capacity of tenant---Tenant had never paid rent to the landlord and there was no proof of payment of rent---Possession of the premises was with the tenant since long and the landlord could not establish the right of ownership or possession---No misreading or non-reading of evidence was available on record---Revision application was dismissed, in circumstances.

2007 SCMR 181; PLD 1986 SC 88; 2000 SCMR 1647; 2005 CLC 1032; PLD 1988 Kar. 433; 1999 MLD 2156; PLD 1997 Kar. 292 and 2001 SCMR 1992 ref.

Imtiaz Ali Effendi for Applicant.

Raja Aftab Ahmed Khan for Respondent No.1.

2021 Y L R 1629

[Sindh]

Before Irfan Saadat Khan and Yousuf Ali Sayeed, JJ

Syed HAMID MIR through Attorney and another---Appellants

Versus

BOARD OF REVENUE SINDH through Member/Secretary Land Utilization Department and 9 others---Respondents

High Court Appeal No. 49 of 2018, decided on 4th December, 2020.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1, 2 & 9---Suit for declaration and permanent injunction---Temporary injunction, refusal of---Discretionary jurisdiction--- Scope---Appellants filed a suit contending therein that a part of their land was illegally occupied by some of the respondents---Appellants filed applications seeking direction to the respondents to restore their possession and grant permanent injunction restraining the defendants from taking coercive action---Single Judge of High Court dismissed the applications on the grounds that it was not possible to give any conclusive finding at that stage as to the exact location of the land and that the grant of mandatory injunction would also tantamount to granting final relief at the interlocutory stage---Validity---Assessment of Single Judge on both scores could not be faulted let alone said to be unreasonable---Decision to grant or refuse an interlocutory injunction was a discretionary exercise and the appellate court must not interfere solely because it would have exercised the discretion differently---Scope of inquiry in exercise of appellate jurisdiction was not to second guess the exercise of judicial discretion but to satisfy itself that such exercise was judicious in terms of being reasonable---Impugned order reflected a well-reasoned approach, which was in consonance with settled principles relating to the issuance of temporary injunctions---Appeal was dismissed.

Roomi Enterprises (Pvt.) Ltd. v. Stafford Miller Ltd. and others 2005 CLD 1805; Hadmor Productions Ltd. v. Hamilton [1983] 1 A.C. 191; Islamic Republic of Pakistan through Secretary, Establishment Division, Islamabad and others v. Muhammad Zaman Khan and others 1997 SCMR 1508; Mohd. Mehtab Khan and others v. Khushnuma Ibrahim Khan and others (2013) 9 SCC 221 and Mohammad Idris v. The Collector of Customs, Karachi and another PLD 1971 Kar. 736 rel.

Khawaja Shams-ul-Islam for Appellants.

Muhammad Akram Qureshi for Respondent No.2.

Miran Muhammad Shah, A.A.G. for the official Respondents.

2021 Y L R 1668

[Sindh]

Before Nadeem Akhtar, J

INTERNATIONAL BRANDS (PVT.) LIMITED---Plaintiff

Versus

Maulana NOOR MUHAMMAD QURESHI---Defendant

Suit No. 812 of 2001, decided on 10th January, 2013.

Specific Relief Act (I of 1877)---

----Ss. 9 & 54---Suit for injunction and possession---Plaintiff filed suit against the defendant praying that he may be permanently restrained from creating any further encroachments on its land and that the possession of such portion of the suit property be handed over to the plaintiff which was illegally occupied by the defendant---Defendant's claim was that the disputed portion which was in his possession was outside the boundary wall; that the plot was in possession of the management of the mosque since 1928; that the management had appointed him as Pesh Imam of the mosque; that the suit property was purchased after payment of consideration and the title documents of the plot had got misplaced---Validity---Plaintiff had produced registered lease deed and other relevant documents to prove its exclusive ownership and title---Evidence produced by the plaintiff had remained unchallenged and un-rebutted---Defendant had not led or produced any evidence---Pleadings of the defendant could not be treated as a substitute of his evidence---Plaintiff was held entitled to possession of the suit property with the directions that defendant and his representatives were permanently restrained from claiming or asserting any right in any portion of the suit property; that the plaintiff shall not demolish or disturb the mosque or the Madrassa attached therewith and use the mosque only for offering prayers and for religious purposes, and that the plaintiff was at liberty to appoint Pesh Imam of its own choice for the mosque---Suit was decreed.

Arshad Mohsin Tayebaly for Plaintiff.

Defendant called absent.

2021 Y L R 1683

[Sindh]

Before Nadeem Akhtar, J

ABDUL MAJEED ABDANI---Plaintiff

Versus

RABIA CONSTRUCTION COMPANY through Sikandar A. Karim and another---Defendants

Civil Suit No. 1102 of 2005, decided on 4th August, 2014.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Scope---Plaintiff filed suit for declaration and permanent injunction against the defendants praying that the plaintiff be declared as the absolute owner of the suit property and the defendants be refrained from illegally occupying the suit property or from dispossessing him therefrom or from interfering in his title or possession---Validity---Registered indenture of sub-lease in respect of the suit property in favour of plaintiff showed that the leasehold rights in suit property were granted in favour of the plaintiff for a period of 99 years---High Court observed that such leasehold rights enjoyed by the plaintiff shall remain intact unless the same were transferred to a third party by the plaintiff himself or unless the registered indenture of sub-lease was cancelled by a competent Court---Since the plaintiff never had any intention of transferring his said rights nor had the sub-lease in his favour been cancelled by any Civil Court, the defendants had no right or authority whatsoever to ask or compel the plaintiff to vacate and handover the suit property to them or surrender his sub-lease---Suit was decreed as prayed for.

Zaheerul Hassan Minhas for Plaintiff.

Defendants called absent.

2021 Y L R 1688

[Sindh]

Before Nadeem Akhtar, J

Shaikh MUHAMMAD SAJID and another---Applicants

Versus

ROOHULLAH JAN and 5 others---Respondents

Revision Application No. 133 of 2014, decided on 5th September, 2016.\

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Limitation Act (IX of 1908), S.5---Civil Procedure Code (V of 1908), S. 115---Suit for declaration, injunction and damages---Revisional jurisdiction of High Court---Limitation---Condonation of delay--- Principle---Applicants-defendants assailed concurrent judgment and decree passed against them by two Courts below in a time barred revision application---Applicants-defendants sought condonation of delay---Validity---Whenever application for condoning delay in filing a time barred appeal was filed, irrespective of length or period, delay of each and every day was to be explained in a satisfactory manner to enable Court to exercise discretion in favour of party seeking condonation of delay---High Court declined to interfere in the matter as Lower Appellate Court had given valid and sound reasons for dismissing application and appeal filed by applicants-defendants--- Revision was dismissed in circumstances.

Messrs United Bank Ltd. v. Mrs. Rehmat and another 1991 MLD 1803 distinguished.

Imtiaz Ali v. Atta Muhammad and another PLD 2008 SC 462; Government of Pakistan through Ministry of Works and another v. Messrs Malbrow Builders, Contractor, Sialkot 2006 SCMR 1248 and Allah Dino v. Haji Ahmed through Legal Heirs and 3 others PLD 2006 Kar. 148 rel.

Mrs. Tabassum Ghazanfar for Applicants Nos. 1 and 2.

Abdul Karim Khan for Respondent No.1.

Mst. Riffat Sultana and Tariq Saeed, called absent for Respondents Nos.2 and 3.

Ms. Nigar Afaq, State Counsel for Respondents Nos. 4 and 5.

2021 Y L R 1705

[Sindh (Sukkur Bench)]

Before Nadeem Akhtar, J

Mst. HUSNA and 3 others---Petitioners

Versus

PROVINCE OF SINDH through D.C.O., Khairpur and 4 others---Respondents

Constitutional Petition No. S-1037 of 2011, decided on 20th November, 2012.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Office objection---Judgment, setting aside of---Petitioners assailed ex parte judgment and decree passed against them on the ground that ex parte decree was obtained through fraud---Application under S.12(2), C.P.C. filed by petitioners was dismissed by Trial Court---Office raised objection to maintainability of Constitutional petition against order passed under S.12(2), C.P.C.---Validity---Where Trial Court and/or Lower Appellate Court committed a gross error of misreading of evidence or where no useful purpose would be served in remanding the case to Trial Court or in cases of jurisdictional errors committed in judicial or quasi-judicial proceedings by Court or Tribunal, Constitutional jurisdiction of High Court could be invoked and such jurisdictional defects/errors could be corrected by High Court in its Constitutional jurisdiction---High Court set aside office objection as contention of petitioners required consideration---High Court declared that Constitutional petition was maintainable---Office objection was overruled, in circumstances.

Ilahi Bukhsh v. Sheikh Muhammad Sadiq and 2 others 2005 CLC 1704; Sheikh Muhammad Sadiq v. Elahi Bukhsh and 2 others 2006 SCMR 12; Shauq-ur-Rehman v. Taimoor Ahmed Khan and 2 others 2004 CLC 281; Karim Bakhsh v. Additional District Judge Khanewal and 5 others 1993 MLD 2164; Ali Muhammad v. Hussain Bakhsh and others PLD 1976 SC 37; Muhammad Shafi v. Mushtaque Ahmed through legal heirs and others 1996 SCMR 856; Moulana Atta-ur-Rehman v. Al-Hajj Sardar Umar Farooq and others PLD 2008 SC 663; Mustafa Lakhani v. Pakistan Defence Officers Housing Authority Karachi 2008 SCMR 611 and Muslimabad Cooperative Housing Society Ltd. v. Mrs. Siddiqa Faiz and others PLD 2008 SC 135 ref.

Iftikhar Ali Arain for Petitioners.

Abdul Ghaffar Memon, State Counsel.

2021 Y L R 1719

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

SAINDAD---Appellant

Versus

The STATE---Respondent

Special Anti-Terrorism Jail Appeals Nos. 304 and 320 of 2016, decided on 6th May, 2020.

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

----Ss. 365-A & 34---Pakistan Arms Ordinance (XX of 1965), S. 13(e)---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Kidnapping or abduction for ransom, common intention, possession of illegal weapon, act of terrorism---Appreciation of evidence---Allegations against the accused were that they in furtherance of their common intention abducted husband of complainant for ransom---Record showed that prosecution had proved its case beyond a reasonable doubt against both the accused by producing reliable, trustworthy and confidence-inspiring evidence including the correct identification of the accused as the kidnappers---Weapons of offence were recovered from the accused---Part of ransom amount and the chain and lock used to tie the abductee during his captivity were recovered on the pointation of accused---Only accused had knowledge about the place of captivity and nobody else and it was shown by the accused persons to the police with the admission that the abductee was kept in the said house---Accused persons from the said house also produced to the police the weapons and the chain with lock and the amount of ransom, which fully supported the prosecution case---Appeal against conviction was dismissed, in circumstances.

Kanwar Anwar Ali's case PLD 2019 SC 488; Waqar Ahmed and another v. The State 2012 PCr.LJ 170; Muhammad Hayat alias Liaquat v. The State PLD 2008 Kar. 603; Kamal Din alias Kamala v. The State 2018 SCMR 577; Sabir Ali alias Fauji v. The State 2011 SCMR 563; State through Advocate-General Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1; Muhammad Zaman v. The State 2007 SCMR 813; Mst. Naseem Akhtar and another v. The State 1999 SCMR 1744; Ghulam Hussain Soomro v. The State PLD 2007 SC 71; Said Muhammad v. The State 1999 SCMR 2758 and Muhammad Akbar v. The State 1999 SCMR 693 ref.

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

----Ss. 365-A & 34---Pakistan Arms Ordinance (XX of 1965), S. 13(e)---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Qanun-e-Shahadat (10 of 1984), Art.22---Kidnapping or abduction for ransom, common intention, possession of illegal weapon, act of terrorism---Appreciation of evidence---Test identification parade---Scope---Allegations against the accused were that they in furtherance of their common intention abducted husband of complainant for ransom---Both the accused were correctly identified by the witnesses during a test of identification and the trial---Evidence of the Judicial Magistrate, who conducted the identification parade, was not shattered by the defence---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 365-A & 34---Pakistan Arms Ordinance (XX of 1965), S. 13(e)---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Qanun-e-Shahadat (10 of 1984), Art. 22---Kidnapping or abduction for ransom, common intention, possession of illegal weapon, act of terrorism---Appreciation of evidence---Non-holding of identification parade---Effect---Allegations against the accused were that they in furtherance of their common intention abducted husband of complainant for ransom---Non-holding of identification test was no ground to discard the testimony of eye-witnesses and abductee, who remained in the custody of accused for a considerable period---Identification of accused in court at the time of evidence was sufficient in such like cases---Identification parade was not a requirement of law but one of the method to test the veracity of evidence of an eye-witness who has had an opportunity to see the accused and claimed to identify him---Identification parade was corroboratory in nature---If the witness had spent considerable time with the accused and had an opportunity to take a good look at him, holding of identification test would not be necessary---Appeal against conviction was dismissed, in circumstances.

Dr. Javed Akhtar v. The State PLD 2017 SC 249; Muhammad Akbar v. The State 1998 SCMR 2538 and The State v. Haider Zaidi and 2 others 2001 SCMR 1919 rel.

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

----Ss. 365-A & 34---Pakistan Arms Ordinance (XX of 1965), S. 13(e)---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Kidnapping or abduction for ransom, common intention, possession of illegal weapon, act of terrorism---Appreciation of evidence---Common liability---Scope---Allegations against the accused were that they in furtherance of their common intention abducted husband of complainant for ransom---Accused persons in the cases of abduction for ransom played different roles; some were kidnapped the person, some sheltered them, some of them guard the abductee, some negotiated with the parents/ relatives of the abductee for ransom, some collected the ransom amount on behalf of the main culprits and some provided information and food to the culprits---All such persons, who played a role in the kidnapping for ransom, were equally responsible and were liable to be convicted without any leniency---Appeal against conviction was dismissed, in circumstances.

Said Muhammad v. The State 1999 SCMR 2758 rel.

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

----S. 365-A---Abduction/kidnapping for ransom---Scope---Cases of kidnapping for ransom were to be dealt with iron hands and even if there were minor discrepancies and deviation in evidence or minor shortfalls on part of the Investigating Agency, the approach of courts were to be dynamic and pragmatic in drawing correct and rational inferences and conclusion arising out of facts and circumstances of each case.

Ajab Khan Khatak for Appellant (in Special Anti-Terrorism Jail Appeal No. 304 of 2016).

Mrs. Abida Parveen Channar for Appellant (in Special Anti-Terrorism Jail Appeal No. 320 of 2016).

Muhammad Iqbal Awan, Deputy Prosecutor General, Sindh (in Special Anti-Terrorism Jail Appeals Nos. 304 and 320 of 2016).

2021 Y L R 1735

[Sindh]

Before Omar Sial, J

MUHAMMAD TARIQ---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 1376 of 2020, decided on 7th December, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 377---Unnatural offences---Bail, refusal of---Defective investigation---Delayed FIR---Un-witnessed incident---Scope---Accused was alleged to have sodomized the 14 years old nephew of complainant---First Information Report was delayed and DNA reports were not of much use as samples were collected and sent at a much later date by the Investigating Officer---Lapses on the part of the Investigating Officer at such preliminary stage could not have an adverse impact on the case of victim---Victim had told the court that the delay was caused as a consequence of sheer fear on the part of his family as people of the locality were afraid of accused---Victim, prima facie, had no reason to falsely implicate the accused---Bail application was dismissed, in circumstances.

Taj Fareen Khan for Applicant.

2021 Y L R 1738

[Sindh]

Before Muhammad Faisal Kamal Alam, J

Syed ZAINUDDIN---Plaintiff

Versus

Messrs CONTINENTAL LIMITED, KARACHI and 2 others---Defendants

Suit No. 1213 of 2000, decided on 6th July, 2020.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), Art. 30---Civil Procedure Code (V of 1908), O. XII, R.6---Suit for declaration and injunction---Admission of facts---Facts in pleadings---Proof---Plaintiff assailed construction raised by defendants over common passage/ corridor restricting his right of way and use of other amenities---Validity---Pleadings cannot be treated as piece of evidence unless plaintiff or defendant (as the case may be) lead evidence in support or in defence of their respective claim---Exception to such established rule is where there is an admission of any fact in written statement, then same can be considered by Court in spite of fact the defendant has not led evidence---Such admission is covered under Art. 30 of Qanun-e-Shahadat, 1984 and O.XII, R.6, C.P.C., resulting to pronouncement of judgment or order on admission---Common passage/corridor in suit building was to be used and enjoyed by all lawful owners/occupants of respective shops---High Court directed the defendants to restore common passage/ corridor along with toilets and kitchen as provided in approved building plan---High Court directed Sindh Buildings Control Authority as it was regulator to ensure restoration of the corridor/ passage and other amenities as provided in approved building plan---Suit was decreed accordingly.

Imran Ahmed for Plaintiff.

Nemo for Defendants Nos.1 to 3.

2021 Y L R 1759

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh, J

SHER MUHAMMAD KHASKHELI---Appellant

Versus

2ND ASSISTANT SESSIONS JUDGE and 6 others---Respondents

Criminal Acquittal Appeal No. S-4 of 2020, decided on 17th January, 2020.

(a) Appeal against acquittal---

----Double presumption of innocence---Interference---Scope---In appeal against acquittal, the accused was presumed to be innocent and if after trial, he was acquitted, he earned double presumption of innocence---Acquittal judgment or order normally did not call for any interference unless it was found arbitrary, capricious, fanciful, artificial, shocking and ridiculous---While evaluating the evidence, difference was to be maintained in an appeal from conviction and an acquittal appeal and in the latter case the interference was to be made only when there was none reading and gross misreading of the evidence, resulting the miscarriage of justice and on perusal of the evidence no other decision could be given except that the accused was guilty.

Yar Muhammad and 3 others v. The State 1992 SCMR 96; Muhammad Shafi v. Muhammad Raza and another 2008 SCMR 329; State/Government of Sindh through Advocate General, Sindh, Karachi v. Sobharo 1993 SCMR 585; Muhammad Yaqoob v. Manzoor Hussain and 3 others 2008 SCMR 1549 and State and others v. Abdul Khaliq and others PLD 2011 SC 554 rel.

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

----Ss. 324, 353, 394, 109 & 34---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty; voluntarily causing hurt in committing robbery, abetment, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Night-time occurrence---Source of light---Chance witnesses---No justification of presence of witnesses at the place of occurrence---Scope---Prosecution case was that the accused party assaulted on complainant party, made firing, due to which complainant and a passerby were hit and became injured and they snatched the rifle from the complainant---Record showed that the private injured persons had not implicated as respondents---Injured witness had deposed that he could not identify any of the accused present in the court because there was complete darkness---No other source of light was there---Said witness knew the accused persons because they were neighbours---Said witness did not see any other motorcycle except their own and did not see any person coming out from the shrubs or running away towards them---Likewise other injured witness had stated that there was darkness as such he could not see any person and he was unable to identify any of the accused present today in the court because they could not see them due to darkness---Time of incident was shown as 9:15 p.m. in the evidence, whereas prosecution witness, in his examination-in-chief, had stated that he left the house at 09:15 p.m., which showed that he was not present at the time of incident and his claim of being eye-witness was manifestly incorrect---When admittedly he was not alleged to have sustained any injury in the alleged incident and his clothes were also not alleged to be blood stained therefore, his presence at the time of incident had not been established by the prosecution---Circumstances established that conclusion arrived at by the Trial Court did not suffer from misreading, non-reading of the evidence or any illegality, infirmity or perversity calling for interference---Appeal against acquittal was dismissed, in circumstances.

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

----Ss. 324, 353, 394, 109 & 34---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty; voluntarily causing hurt in committing robbery, abetment, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Contradictions and improvements in the statements of witnesses---Scope---Prosecution case was that the accused party assaulted on complainant party, made firing, due to which complainant and a passerby were hit and became injured and they snatched the rifle from the complainant---Complainant in his cross-examination had shown the bulb of Rest House as the source of identification of the accused persons, but the same had not been secured whereas the private injured witnesses in their statements had stated that there was complete darkness and there was no source of light---Complainant had admitted the fact of identifying the accused as deposed was not mentioned in the FIR---Source of identification of accused was also not mentioned in the FIR---Witness had deposed in his examination-in-chief that he identified the accused persons under the light of the vehicle (motor cycle)---Said fact was also nowhere mentioned in the FIR---By deposing so, both the complainant and witness had attempted to make improvements in the prosecution case during the trial---Circumstances established that conclusion arrived at by the Trial Court did not suffer from misreading, non-reading of the evidence or any illegality, infirmity or perversity calling for interference---Appeal against acquittal was dismissed, in circumstances.

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

----Ss. 324, 353, 394, 109 & 34---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty; voluntarily causing hurt in committing robbery, abetment, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Non recovery of incriminating material from accused---Effect---Prosecution case was that the accused party assaulted on complainant party, made firing, due to which complainant and a passerby were hit and became injured and they snatched the rifle from the complainant---Record showed that no incriminating article whatsoever was recovered from the accused persons---Complainant and a witness stated that the accused persons had snatched away official rifle from the complainant at the time of incident, but that weapon was shown to have been recovered from co-accused who had been acquitted of the charge---Complainant had not challenged their acquittal---Circumstances established that conclusion arrived at by the Trial Court did not suffer from misreading or non-reading of the evidence or any illegality or infirmity or perversity calling for interference---Appeal against acquittal was dismissed, in circumstances.

Muhammad Nawaz Panjotha for Appellant.

2021 Y L R 1769

[Sindh]

Before Nazar Akbar, J

MUHAMMAD SALEEM SHAHZAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 288 of 2019, decided on 4th July, 2020.

Penal Code (XLV of 1860)---

----Ss. 320 & 427---Qatl-i-khata, hurt by rash and negligent driving---Appreciation of evidence---Accused was charged for hitting his trailer with the bike of deceased and causing him serious injuries resultantly, deceased died---Record showed that accused after filing appeal and obtaining bail had absconded from the Court and, therefore, after taking action against the surety for production of the accused, the surety was forfeited and Investigating Officer was directed to produce the accused---On his failure, SSP Investigation was called to explain the circumstances in which the accused could not be arrested by the police, however, pursuant to the order owner of the vehicle involved in the accident was present in Court and he was directed to produce the vehicle in Court---Said owner of the vehicle did not produce the vehicle unless police took its custody---Vehicle would remain in the custody of the Nazir of the Court until the absconding accused was produced in court---High Court observed that Investigating Officer and the SSP should make sure that the original driving licence of the accused should also be produced in court with fresh verification---Pursuant to the said order, SSP investigation had submitted a report that the licence produced by the accused at the time of his arrest was fake and bogus---During trial, prosecution had relied on a report dated 30.08.2016 from the Incharge Driving Licence Branch, wherein driving licence of the accused was verified as genuine---Such fact showed that accused had managed a bogus verification report regarding his driving licence, therefore, SSP Investigation was directed to ensure a comprehensive inquiry through the competent authority into the circumstances in which a fake licence was initially issued from Driving Licence Branch and then it was protected by sending verification report about the fake licence as genuine and whoever was responsible in issuing fake licence and verification report dated 30.08.2016 from the Driving License Branch, action be taken against all those persons according to law---SSP Investigation had informed that action would be taken against owner of the vehicle involved in the accident in accordance with law for allowing his vehicle to be driven by a person who was having a fake licence or in other words who was driving the vehicle without licence---High Court directed that once the accused would be arrested and produced before the Court, he should be put on notice under S.439(2), Cr.P.C. as to why his punishment should not be enhanced to include conviction under S.320, P.P.C.---Matter was adjourned till the arrest and producing the accused by the SSP investigation

Atta Muhammad v. The State 2005 PCr.LJ 1648 rel.

Nemo for Appellant.

Ms. Seema Zaidi, Additional P.G., Sindh for the State.

2021 Y L R 1777

[Sindh]

Before Mohammad Karim Khan Agha and Muhammad Saleem Jessar, JJ

AHMED OMAR SHEIKH 3 others---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 66, 67 and 68 of 2002 and Confirmation Case No. 12 of 2002, decided on 2nd April, 2020.

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

----S. 365-A---Kidnapping for ransom---Scope---Responsibility and liability of each accused---Scope---If all the accused played their designated role the kidnapping for ransom could not have been achieved and would have failed then each accused involved in the kidnapping for ransom bore equal responsibility and liability for the offence.

(b) Criminal trial---

----Heinousness of offence---Effect---Scope---Court was to decide the guilt or innocence of the accused by dispassionately assessing the evidence and coming to a decision which is supported by the evidence on record and the governing law and not by emotions or own personal feelings---Court could only be guided by the evidence and the law and nothing else.

Azeem Khan v. Mujahid Khan 2016 SCMR 274 rel.

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

----Ss. 302(b), 365-A, 368, 201, 120-A, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abduction for ransom, wrongfully concealing or keeping in confinement, causing disappearance of evidence of offence, abetment, common intention, act of terrorism---Appreciation of evidence---Sentence, reduction in---Criminal conspiracy---Scope---Accused were charged for kidnapping the husband of complainant for ransom through a pre-planned conspiracy, however, when the ransom demands were not met the abductee was murdered by the accused with video recording of his execution---Record showed that there was no evidence that any of the accused were present and that any conspiracy/ plan was made to abduct deceased---No evidence was found to prove that either accused or any other accused hatched a conspiracy to kidnap the deceased for ransom in room of the Hotel within the meaning of S. 120-A, P.P.C. and thus all the accused were acquitted of the charge---Circumstances established that the prosecution had failed to prove the charges against all the accused persons except one accused---Appeals were allowed and all the co-accused persons were acquitted of all charges except said accused who was only convicted under S.362, P.P.C. and as such sentenced was to seven years, in circumstances.

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

----Ss. 302(b), 365-A, 368, 201, 120-A, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abduction for ransom, wrongfully concealing or keeping in confinement, causing disappearance of evidence of offence, abetment, common intention, act of terrorism---Appreciation of evidence---Sentence, reduction in---Delay of twelve days in lodging the FIR---Effect---Accused were charged for kidnapping the husband of complainant for ransom through a pre-planned conspiracy, however, when the ransom demands were not met the abductee was murdered by the accused with his execution being video recorded---Record showed that there was no unexplained delay in lodging the FIR after the incident, which could have led to concocting a false case against the accused---Admittedly, the FIR was lodged after a delay of twelve days, however, firstly in cases of kidnapping for ransom it was not unusual for there was some delay in lodging an FIR as the immediate concern of the loved ones of the abductee was to try to track down the missing person by calling friends, relatives and others who were last in contact with the missing person---In the present case, delay would be more acute as the loved one of the missing person was a foreign national (American) who was a lady who had accompanied her husband (the abductee) on his trip to Pakistan---Such a complainant would have been even more scared and traumatized than usual and would not even know how to go about such matters---Most likely one of her first ports of call would have been the US Embassy in order to report her husband as missing---Even otherwise she contacted a witness on the day after her husband went missing and the police soon after got involved in the case along with the FBI since deceased was an American citizen--- No unexplained delay in lodging the FIR was found, in circumstances--- Circumstances established that the prosecution had failed to prove the charges against all the accused persons except the accused---Appeals were allowed and all the co-accused persons were acquitted of all charges except accused who was only convicted under S. 362, P.P.C. and as such was sentenced to seven years, in circumstances.

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

----Ss. 302(b), 365-A, 368, 201, 120-A, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, kidnapping or abduction for ransom, wrongfully concealing or keeping in confinement, causing disappearance of evidence of offence, abetment, common intention, act of terrorism---Appreciation of evidence---Sentence, reduction in---Test identification parade---Scope---Accused were charged for kidnapping the husband of complainant for ransom through a pre-planned conspiracy, however, when the ransom demands were not met the abductee was murdered by the accused with his execution being video recorded---In the present case, the prosecution witness identified co-accused at an identification parade as the person whom they met in a room of hotel and who told them that he would try to arrange meeting of deceased with the Prime Minister---Said witness would have gotten a good look at co-accused as according to him the meeting in the room with co-accused lasted about three hours and there was full light in the room and as such he could easily identify co-accused even without an identification parade which was not mandatory in the case---Said witness did pick co-accused out at an identification parade as the person who met deceased in the hotel room and discussed meeting with the Prime Minister---Said witness was an independent witness, he was not a chance witness, he had no enmity with the co-accused and had no reason to falsely implicate the accused or incorrectly identify him, however, there might be some deficiencies in the conduct of the identification parade but based on the particular facts and circumstances of that particular witnesses in identification of the accused those deficiencies were not particularly relevant---Evidence of said witness was not shattered during lengthy cross-examination and thus court believed the evidence of that witness in terms of his correct identification of co-accused and as co-accused being the person who agreed to arrange accused's meeting with Prime Minister---Evidence of the meeting between co-accused and deceased at the hotel was corroborated by the evidence of other witness who was the receptionist at the hotel on the day when the deceased and co-accused met---Another witness, who was a taxi driver, stated that he took the deceased to the Governor House and then at about 7.00 pm took him to the village restaurant close to the hotel---Admittedly it was dark but in his evidence witness specifically said that there was light and he had seen a person who he later identified as accused before an identification parade---Admittedly, said witness did not give any hulia (description) of the accused and the identification parade was held after some delay and not all the rules of the identification parade might have been followed but he was an independent witness, he was not a chance witness, he had no enmity with the accused and had no reason to falsely implicate him or incorrectly identify him and his evidence in part was corroborated by other witness---Evidence of said witness was not shattered during lengthy cross-examination and thus believable the evidence of that witness in terms of his correct identification of accused as the person who left with deceased on the night of 23-01-2002---Evidence showed that accused by deceitful means i.e. pretending to set up a meeting between deceased and Prime Minister induced deceased to go with him and deceased was never seen alive again and as such accused had committed an offense under S.362, P.P.C. of abducting the deceased and thus he was convicted of such offence---Circumstances established that the prosecution had failed to prove the charges against all other accused persons except the accused---Appeals were allowed and all the co-accused persons were acquitted of all charges except accused who was only convicted under S. 362, P.P.C. and as such was sentenced to seven years, in circumstances.

Mah Gul v. The State 2009 SCMR 4; Muhammad Yameen alias Raja v. The State and others 2009 SCMR 84; Waqar Ahmad and another v. The State 2012 PCr.LJ 170; Abdur Rashid v. The State 2003 PCr.LJ 742; Muhammad Ayaz and others v. The State 2011 SCMR 769; Muhammad Ramzan and others v. The State 2011 PCr.LJ 140; Shafqat Mehmood and others v. The State 2011 SCMR 537; Sabir Ali alias Fauji v. The State 2011 SCMR 563; Umar Farooq v. The State 2006 SCMR 1605; Abdul Salam and others v. The State and others PLD 2005 Quetta 86; Ziaullah alias Jajj v. The State 2008 SCMR 1210; Abdul Jabbar and another v. The State 2019 SCMR 129; Zafar v. The State 2018 SCMR 326; G.M. Niaz v. The State 2018 SCMR 506; Nazir Ahmad v. The State 2018 SCMR 787; Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652; Ali Raza alias Peter and others v. The State and others 2019 SCMR 1982; Muhammad Mansha v. The State 2018 SCMR 772; Kanwar Anwaar Ali, Special Magistrate in the matter of Criminal Miscellaneous Application No.183 of 2019 in Criminal Appeal No.259 of 2018 PLD 2019 SC 488; Mian Sohail Ahmed and others v. The State and others 2019 SCMR 956; Abdul Karim alias Raja and another v. The State 1996 PCr.LJ 503; Immadine v. Pathan and 3 others 2001 PCr.LJ 1892; Abdul Qadir Motiwala v. The State 1971 SCMR 569; Gul Munir and another v. The State 1990 PCr.LJ 1878; Munir Ahmed and others v. The State 1988 PCr.LJ 116; Ali Akbar v. The State 2001 PCr.LJ 890; Mst. Darya Khatoon v. The State 1996 PCr.LJ 1477; Wali Muhammad alias Mandhoo v. The State 1986 PCr.LJ 1153; Moharram v. The State 1983 PCr.LJ 471; Miskeen v. The State 1983 PCr.LJ 1113; Hamzo and another v. The State 1083 PCr.LJ 892; Minhon and another v. The State 1996 PCr.LJ 528; Ghulam Abuzar and another v. The State 1991 PCr.LJ 697; Shah Nawaz v. The State 1989 PCr.LJ 621; Murtaza and 2 others v. The State and another 1996 PCr.LJ 358; Sh. Muhammad Amjad v. The State PLD 2003 SC 704; Ghulam Husain Soomro v. The State PLD 2007 SC 71; Zakir Khan and others v. The State 1995 SCMR 1793; Raz Muhammad v. The State PLD 2002 SC 56; Nazeer alias Wazeer v. The State PLD 2007 SC 202; Muhammad Amin v. The State PLD 2006 SC 219; Khan Muhammad v. The State 1999 SCMR 1818; Ghazanfar Ali alias Pappu and others v. The State 2012 SCMR 215; The State v. Minhun alias Gul Hassan PLD 1964 SC 813 and Ghulam Nabi v. The State 2007 SCMR 808 ref.

Ghazanfar Ali v. State 2012 SCMR 2015 and Muhammed Siddique v. State 2020 SCMR 342 rel.

(f) Criminal trial---

----Confession, retraction of---Scope---Retracted judicial confession could be legally admissible and used against its maker in certain circumstances.

Mst. Joygun Bibi v. The State PLD 1960 (SC (Pak)) 313 rel.

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

----Ss. 302(b), 365-A, 368, 201, 120-A, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abduction for ransom, wrongfully concealing or keeping in confinement, causing disappearance of evidence of offence, abetment, common intention, act of terrorism---Appreciation of evidence---Sentence, reduction in---Recovery of laptop of accused---Reliance---Scope---Accused were charged for kidnapping the husband of complainant for ransom through a pre-planned conspiracy, however, when the ransom demands were not met the abductee was murdered by the accused with his execution being video recorded---In the present case, the recovered laptop contained vital information as to where the e-mails which were sent to widow of deceased concerning deceased kidnapping originated from on which a report was prepared by an FBI Forensic Expert which incriminated the accused in sending the ransom e-mails, however, the evidence of FBI Forensic Expert showed that either the prosecution evidence regarding the recovery of the laptop was not truthful or the evidence of the FBI Forensic Expert was not truthful regarding the time when FBI Forensic Expert examined the recovered laptop---One major and material contradiction existed in the prosecution evidence concerning as to when the laptop was recovered and when it was examined by the FBI Forensic Expert---Circumstances established that the prosecution had failed to prove the charges against all the accused persons except the accused---Appeals were allowed and all the co-accused persons were acquitted of all charges except accused who was only convicted under S. 362, P.P.C. and as such was sentenced to seven years, in circumstances

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

----Ss. 302(b), 365-A, 368, 201, 120-A, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 129(g)--- Qatl-i-amd, kidnapping or abduction for ransom, wrongfully concealing or keeping in confinement, causing disappearance of evidence of offence, abetment, common intention, act of terrorism---Appreciation of evidence---Sentence, reduction in---Withholding material evidence---Effect---Accused were charged for kidnapping the husband of complainant for ransom through a pre-planned conspiracy, however, when the ransom demands were not met the abductee was murdered by the accused with his execution being video recorded---Record showed that the accused made confession before the police, which was inadmissible in evidence---Concerned judge remanding the case was called by the prosecution to corroborate those confessions which were allegedly made before him by the accused at the time of his remand but he was given up by the prosecution---Said fact tended to indicate that under Art. 129(g) Qanun-e-Shahadat, 1984, he might not have supported the prosecution case in that respect and as such no reliance could be placed on alleged confessions of accused before the police at the time of his remand which had since been retracted by the accused---Circumstances established that the prosecution had failed to prove the charges against all the accused persons except the accused---Appeals were allowed and all the co-accused persons were acquitted of all charges except accused who was only convicted under S. 362, P.P.C. and as such was sentenced to seven years, in circumstances.

Fayyaz Ahmed v. State 2017 SCMR 2026 rel.

(i) Criminal trial---

----Circumstantial evidence---Last seen evidence---Principles---Cogent reasons must exist that the deceased in normal and ordinary course was supposed to accompany the accused and those reasons must be palpable and prima facie furnished by the prosecution---Proximity of the crime scene played a vital role because if within a short distance the deceased was done to death then ordinarily the inference would be that he did not part ways or separated from the accused and onus in that regard would shift to the accused to furnish those circumstances under which, the deceased left him and parted ways in the course of transit----Timing that the deceased was last seen with the accused and subsequently his murder, must be reasonably close to each other to exclude any possibility of the deceased getting away from the accused or the accused getting away from him---Some reasons and objects must exist on account of which the deceased accompanied the accused for accomplishment of the same towards a particular destination, otherwise giving company by the deceased to the accused would become a question mark---Some motive on the part of the accused must exist to kill the deceased otherwise the prosecution had to furnish evidence that it was during the transit that something happened abnormal or unpleasant which motivated the accused in killing the deceased---Quick reporting of the matter without any undue delay was essential, otherwise the prosecution story would become doubtful for the reason that the story of last seen was tailored or designed falsely, involving accused person---Circumstantial evidence of last seen must be corroborated by independent evidence, coming from unimpeachable source because uncorroborated last seen evidence was a weak type of evidence in cases involving capital punishment---Recovery of the crime weapon from the accused and the opinion of the expert must be carried out in a transparent and fair manner to exclude all possible doubts, which might arise if it was not done in a proper and fair manner---Court had also to seriously consider that whether the deceased was having any contributory role in the cause of his death inviting the trouble, if it was not a pre-planned and calculated murder.

Fayyaz Ahmed v. State 2017 SCMR 2026 rel.

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

----Ss. 302(b), 365-A, 368, 201, 120-A, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abduction for ransom, wrongfully concealing or keeping in confinement, causing disappearance of evidence of offence, abetment, common intention, act of terrorism---Appreciation of evidence---Sentence, reduction in---Last seen evidence---Scope---Accused were charged for kidnapping the husband of complainant for ransom through a pre-planned conspiracy, however, when the ransom demands were not met the abductee was murdered by the accused with his execution being video recorded---In the present case, deceased was abducted on 23-01-2002 which was the time he was last seen with accused---E-mails concerning his kidnap for ransom were received on 27th and 30th January 2002 along with photo's of deceased showing that he was alive at that time with the last e-mail stating that deceased would be killed in 24 hours unless the demands were met i.e. on 31st January 2002 i.e. 7 or 8 days after he was last seen with accused---Said video of deceased's execution was given by a source to FBI agent on 21-02-02 and according to witness there was no date shown when the video of the execution was made---Taking into account the law on "last seen" evidence or "last seen together" evidence that on account of relatively long proximity in time from when accused was last seen with deceased and the fact that it was unknown where and when deceased was murdered it would not be safe to convict him for kidnapping for ransom or murder on the basis of "last seen" evidence or "last seen together" evidence without strong unimpeachable corroborative evidence which was lacking in the case---Time of death and place of death of deceased had not even been conclusively determined and his body had still not been found---Based on re-assessment of the evidence, all the accused were acquitted for the offence of kidnapping the deceased for ransom under S.365-A, P.P.C.---No evidence was available to prove that any of the accused were involved in the murder---To prove that, the prosecution produced a video which had acquired from a source on 21-02-02 showing deceased being executed by having his head cut off by a churri---No one else was shown in the video---No murder weapon had been found---Even if the video was authentic at best it only proved that deceased was murdered and the manner thereof---No evidence had been brought on record by the prosecution to link any of the accused to the murder of deceased and as such all the accused were acquitted of murder under S.302, P.P.C.---Circumstances established that the prosecution had failed to prove the charges against all the accused persons except the accused---Appeals were allowed and all the co-accused persons were acquitted of all charges except accused who was only convicted under S.362, P.P.C. and as such was sentenced to seven years

(k) Criminal trial---

----Benefit of doubt--- Principle---Prosecution must prove its case against the accused beyond a reasonable doubt and that the benefit of doubt must go to the accused by way of right as opposed to concession.

Tariq Pervez v. The State 1995 SCMR 1545 rel.

Mahmood A. Sheikh, assisted by Rauf Ahmed Sheikh for Appellants (in Special Criminal Anti-Terrorism Appeals Nos. 66, 67 and Confirmation Case No. 12 of 2002).

Khawaja Naveed Ahmed and Ria Bashir Ahmed for Appellants (in Special Criminal Anti-Terrorism Appeals Nos.66, 67 and Confirmation Case No. 12 of 2002).

Saleem Akhtar Buriro, Additional Prosecutor General for the State (in Special Criminal Anti-Terrorism Appeals Nos.66, 67 and Confirmation Case No.12 of 2002).

Saleem Akhtar Buriro, Additional Prosecutor General for Appellant/State (in Special Criminal Anti-Terrorism Appeal No. 68 of 2002).

Khawaja Naveed Ahmed and Ria Bashir Ahmed for Respondents (in Special Criminal Anti-Terrorism Appeal No. 68 of 2002).

2021 Y L R 1828

[Sindh]

Before Mrs. Rashida Asad, J

Mst. FAREEDA and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. 133 of 2018, decided on 29th April, 2020.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Accused were charged for committing murder of brother of the complainant by causing churri blows---Alleged occurrence took place on 31.05.2016 as it was gathered from evidence of two eye-witnesses, complainant and his brother---Record showed that eye-witness in cross-examination stated that it was about 11:00 pm when they took the dead body from the house of accused to hospital, whereas according to statement of complainant, they reached at the house of accused at about 11:45 pm---On scrutiny of statement of eye-witness, a sheer and glaring contradiction was noted on the fact that said witness stated that they shifted body of deceased to the Hospital---Whereas, complainant deposed that he was advised by the Doctor that since it was police case, therefore, we would bring dead body to the Hospital for its autopsy---Complainant along with his mother came to house, however, eye-witness and his uncle took the dead body to the Hospital for its post-mortem---Said uncle of complainant and another witness were given up at trial and as such it was hardly possible for a judicial mind to reconcile and accept evidence of said both prosecution witnesses being sufficient on that single fact if taken into consideration with the statement of Medical Officer, who conducted post-mortem of dead body---Said Medical Officer had stated that dead body was brought at the Hospital by Assistant Sub-Inspector of Police---Untrustworthiness of prosecution witnesses was apparent on the face of the record as police witness, who brought the dead body at the Hospital, had made a quite contradictory statement that during his duty hours he received intimation through Medico-Legal Officer about a dead body brought at the Hospital ---Glaring and sheer contradictions floated on surface of statement of complainant, which depicted that on registration of FIR on 01.06.2016, the accused were arrested and crime weapon was also seized and such memos were prepared at spot---Whereas, both memos negated the statement of the complainant which on the face of it reflected to have been prepared on 02.06.2016---Contents of the FIR to that affect also contradicted the statement of complainant--- Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances

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

----Art. 129(g)---With-holding of best evidence---Scope---Withholding or giving up of best witness causes a reason to draw lawful inference that such witnesses, if examined, might not have supported prosecution.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Inquest Report---Scope--- Accused were charged for committing murder of brother of the complainant by causing churri blows---Inquest report and memo of examination of dead body showed that fresh blood was found on the wears of deceased---Naturally that a person who lifted an injured or a dead body who had received injuries with a large knife, a little time before lifting, must receive blood on his clothes and the vehicle used for transportation would also get smeared with blood---None of the prosecution witnesses produced their wears which might have smeared with blood while carrying the dead body---Motorcycle used for shifting of dead body was also not produced or seized---No one from hospital was examined in corroboration of statements of witnesses---Fact of shifting of dead body on a motorbike also did not appeal to a prudent mind--- Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of brother of the complainant by causing churri blows---Record showed that alleged role of male co-accused in murder of the deceased had not been investigated---Such inaction of police made the entire matter very fishy as to role and involvement of accused in the alleged offence---Succinctly, if entire evidence is thrashed in juxta position to each other, registration of FIR after deliberation could not be ruled out---Investigation as regard to recovery of incriminating articles etc and preparing of respective memos appeared to be arranged---Notably, the memo of handing over of dead body didnot contain time and there was no oral evidence to that effect---Record showed that post-mortem of the dead body was carried out at 03:45 a.m. on 01.06.2016 and completed at 05:30 a.m.---Police witness, in cross-examination, had stated that post-mortem of the deceased was conducted before preparing inquest report, meaning thereby that Medical Officer consumed good amount of time in completion of inquest report after post-mortem---Procedure for handing over of dead body to family members of the deceased, which did not contain time, then it was quite impossible that said witness could have returned to Police station, which was at least sixteen kilometres from the Hospital at 0545 hours---Witness who brought dead body at the Hospital at about 12:50 a.m. had produced station diary, containing time of receipt of information from Medico-Legal Officer at 0125 hours and thereafter his purported departure to the hospital---Said fact showed that FIR was not lodged till the time the said witness assumed his next day duty---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 154---Delay in lodging the FIR---Scope---Delay of more than one hour in lodging the FIR gave rise to the inference that occurrence did not take place in the manner projected by prosecution and time was consumed in making effort to give a coherent attire to prosecution case, which hardly proved successful---Such a delay was even more fatal when the police station, besides being connected with the scene of occurrence through a metalled road, was at a distance of 3 kilometres.

Zeeshan alias Shani v. The State 2012 SCMR 428 and Noor Muhammad v. The State 2010 SCMR 97 rel.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Chemical examination Report---Scope---Accused were charged for committing murder of brother of the complainant by causing churri blows---Chemical examination report to the affect that all the articles were found blood stained without grouping and matching of such blood with the blood of deceased was of no support to the prosecution's case.

(g) Criminal trial---

----Witness---Hostile witness---Statement of hostile witness---Scope---Hostile witness might be a truthful witness---Witness did not lose credibility merely on the ground that he had turned hostile---Court was to take into consideration entire evidence of such witness to see as to whether any part of his/her evidence was worthy of belief in the light of the other evidence---Testimony of hostile witnesses could not be discarded altogether and had to be considered like the evidence of any other witness but with a caution.

Zarid Khan v. Gulsher and another 1972 SCMR 597; Muhammad Sadiq v. Muhammad Sarwar 1979 SCMR 214; Islam v. The State PLD 1962 Lah. 1053; Kaloo and 2 others v. The State 1973 PCr.LJ 334 and Muhammad Luqman v. The State 1989 MLD 1708 rel.

Habib-ur-Rehman Jiskani for Appellants.

Zahoor Ahmed Shah, Deputy Prosecutor General, Sindh for the State.

2021 Y L R 1841

[Sindh]

Before Mohammad Karim Khan Agha and Abdul Mobeen Lakho, JJ

MUZAMIL ARIF---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Jail Appeal No. 237 of 2018, decided on 7th April, 2021.

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

----Ss. 302(b) & 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qatl-i-amd, kidnapping or abduction for ransom, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that son of complainant was kidnapped for ransom by the accused and then was killed by putting phanda---First Information Report was registered with promptitude against unknown persons---No eye-witness of the deceased being abducted or murdered by the accused or anyone else was available---No last seen evidence was available to connect the deceased with the accused---According to the prosecution the deceased left for Quran classes with a lady who lived nearby---Said lady was not produced as a witness and as such there is no evidence that the deceased even attended his Quran classes---No one saw the deceased alive again after he left for his Quran study until his dead body was found---Circumstances established that the prosecution had failed in its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qatl-i-amd, kidnapping or abduction for ransom, act of terrorism---Appreciation of evidence---Contradictions in the statements of witnesses---Scope---Prosecution case was that the son of complainant was kidnapped for ransom by the accused and then was killed by putting phanda---Record showed that the accused was arrested from his house and the police told the prosecution witness on the same day that the accused was the killer, which they could not have known in the absence of eye-witnesses---Police witness, whom the incident was first reported to, went out straight away for looking the accused, which was not usual police practice in such cases, who usually wait for a formal FIR to be registered before investigating the matter in the early stages of a missing child who might be found---Said police witness stated that prosecution witness pointed out the accused as the killer, which completely contradicted the evidence of said prosecution witness, who stated that it was the police which told him that the accused was the killer---Memo of arrest showed that police witness arrested the accused from the gali and not from his house and made all the relevant recoveries on the pointation of the accused, however, as per Investigating Officer, he arrested the accused and made the recoveries which was completely contradictory to the evidence of police witness on the said points---Some of the recoveries were made fromthe roof of the flats on the pointation of the accused when it was dark and it would not have been possible to see clearly---Story that the light was provided by the police mobiles was not believable as car lights shine straight ahead, they did not bend up into the sky and then come down again to throw light on the roof of a building---Such was completely an unbelievable story---Circumstances established that the prosecution had failed in its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qatl-i-amd, kidnapping or abduction for ransom, act of terrorism---Appreciation of evidence---Recovery of incriminating material---Scope---Prosecution case was that the son of complainant was kidnapped for ransom by the accused and then was killed by putting phanda---Record showed that as for the recoveries, those were not linked to either the accused or the deceased and it could not be ruled out that those were planted by the police---For example, a shopper could easily be brought from anyone or from anywhere---No evidence was there that the duppata and Quran belonged either to the accused or the deceased---No forensic evidence was available that the body of the deceased was kept in the almirah of the accused---Accused, according to the prosecution story, strangled the deceased in the basement and kept him in the almirah and then a few hours later carried the body out of the flat and dumped it somewhere else did not appeal to natural human conduct as the accused could be easily seen in such a crowded area whilst doing that and would not have taken such a risk of being caught---Circumstances established that the prosecution had failed in its case against the accused---Appeal against conviction was allowed, in circumstances.

(d) Criminal trial---

----Circumstantial evidence---Scope---Evidence of the prosecution was to provide all links in an unbroken chain, where one end of the same touched the dead body and the other the neck of the accused---Such fact would lead to a conviction based on circumstantial evidence.

Fayyaz Ahmed v. State 2017 SCMR 2026 and Azeem Khan v. Mujahid Khan 2016 SCMR 274 rel.

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

----Ss. 302(b) & 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qatl-i-amd, kidnapping or abduction for ransom, act of terrorism---Appreciation of evidence---Call Data Record---Scope---Prosecution case was that the son of complainant was kidnapped for ransom by the accused and then was killed by putting phanda---No Call Data Record was obtained to link the phone allegedly recovered from the accused with prosecution witness's phone from which the alleged ransom demand were received---No messages/SMSs were exhibited from any of the recovered phones to support the fact that the accused had sent SMS by way of ransom demand to the phone of prosecution witness---No reliable circumstantial evidence was available to link the accused to the murder to fulfil the legal requirements of a conviction based on circumstantial evidence---Circumstances established that the prosecution had failed in its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Qatl-i-amd, kidnapping or abduction for ransom, act of terrorism---Appreciation of evidence---Compact Disc---Scope---Prosecution case was that the son of complainant was kidnapped for ransom by the accused and then was killed by putting phanda---One CD of alleged confession of the accused was produced, which was prepared by a TV channel---Said CD was inadmissible in the first place, since it was not introduced by its maker into evidence---Said CD of the alleged confession/admission of the accused was inadmissible evidence---Circumstances established that the prosecution had failed in its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7(a)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, kidnapping or abduction for ransom, act of terrorism---Appreciation of evidence---Confessional statement of accused---Scope---Prosecution case was that the son of complainant was kidnapped for ransom by the accused and then was killed by putting phanda---Record showed that the confessional statement of accused was recorded under oath---High Court observed that such statement could not be relied upon as the same was not made voluntarily but procured through torture---When the accused was taken into police custody he was in a fit condition, however after his arrest when he was medically examined he was found to have been injured as if he had fallen down a flight of stairs, thus, it could be doubted that the accused was maltreated by the police whilst in custody and that his confession was beaten out of him and as such it could not be safely relied upon as it was not made voluntarily---Accused had no ill will or enmity with the deceased and vice a versa, so there was no reason for the accused to have kidnapped and killed the deceased---Prosecution had neither put forward nor proved any motive as to why the accused would kidnap and kill the deceased---Circumstances established that the prosecution had failed in its case against the accused---Appeal against conviction was allowed, in circumstances.

(h) Criminal trial---

----Benefit of doubt---Principle---Benefit of doubt must go to the accused by way of right as opposed to concession.

Tariq Parvaiz v. The State 1995 SCMR 1345 rel.

(i) Criminal trial---

----Benefit of doubt---Principle---If there was a single circumstance, creating reasonable doubt in a prudent mind about the guilt of the accused, the accused would be entitled to its benefit not as a matter of grace and concession but as a matter of right.

Javed Ahmed Rajput for Appellant.

Muhammad Iqbal Awan, Deputy Prosecutor General for the State.

Nadeem Ahmed Azar for the Complainant.

2021 Y L R 1886

[Sindh]

Before Syed Hasan Azhar Rizvi, J

XIAMEN GOLDEN DRAGON BUS COMPANY LTD. through Authorized Attorney and another---Plaintiffs

Versus

SINDH INFRASTRUCTURE DEVELOPMENT COMPANY LTD. through Chief Operating Officer and 5 others---Defendants

Suit No. 1995 of 2020 and C.M.As. Nos. 14426, 14938 and 14964 of 2020, decided on 22nd February, 2021.

Public Procurement Regulatory Authority Rules, 2004---

----Rr. 28 & 48---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2--- Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Procurement procedure--- Interim injunction, refusal of---Plaintiff company assailed grant of contract to defendant company---Defendant company was invited by procuring authority to finalize contract negotiation and such process was under progress when defendant was served with notification intimating that Grievance Redressal Committee was constituted to hear and decide complaint filed by plaintiff under R.48(2) of Public Procurement Regulatory Authority Rules, 2004---Notification was accompanied by letter of plaintiff-company highlighting its objections on opening of Financial Proposal of defendant---In said letter plaintiff alleged that Bid Security provided by defendant was beyond expiry of closing date and it was in the form of photocopy of Swift Message from issuing bank to beneficiary's bank---Grievance Redressal Committee after hearing parties gave its detailed and well-reasoned findings/decision in favour of defendant and comprehensively responded objections raised by plaintiff---Plaintiff did not allege any bias, favouritism and undue favour against procuring authority in awarding contract to defendant---Even plaintiff did not call in question the work, services, technologies and experience of defendant in the relevant field---Plaintiff only challenged awarding of contract of project in question merely on minor technicalities and procedural irregularities in the proceedings---High Court declined to confirm the interim injunction granted earlier in favour of plaintiff---Application was dismissed, in circumstances

Otsuka Pakistan Limited v. Province of Sindh 2020 MLD 185; Gemalto Middle East FZ-LLC v. FoP 2020 CLD 151; M. Ayub and brothers v. CDA PLD 2011 Lah. 16; Suo Motu Case No.5 of 2010 PLD 2010 SC 731; 2012 CLD 1734; PLD 2016 Sindh 479; 2014 YLR 1366; 1974 SCMR 356; PLD 2017 Lah. 802; Pakistan Gasport v. Sui Sourthern Gas Company Ltd. PLD 2016 Sindh 207; Messrs Kuwait National Real Estate Company (Pvt.). Ltd. v. Messrs Educational Excellent Ltd. and another 2020 SCMR 171 and A.M. Construction Company (Pvt.) Ltd. v. National Highway Authority 2017 CLD 178 ref.

Salahuddin Ahmed, Shahzad Nizam, Majid Jehangir and Nadeem Ahmed for Plaintiffs.

Jahanzeb Awan, Shahan Karimi and Adeel Asad for Defendant No.1.

Arshad M. Tayebally, Heer Memon and Abdul Ahad for Defendant No.4.

Ghulam Ali Khan for Defendant No.5.

2021 Y L R 1906

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

RASOOL BUX---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-130 of 2019, decided on 31st December, 2019.

(a) Criminal trial---

----Acquittal in main case---Scope---If an accused had been acquitted in the main case then he was also entitled to be acquitted in the case which was off shoot of the main case.

Yasir Chaudhry v. The State 2012 MLD 1315 rel.

(b) Sindh Arms Act (V of 2013)---

----S. 23(1)(a)--- Criminal Procedure Code (V of 1898), S. 103---Recovery of fire arms---Appreciation of evidence---Recovery---Non-association of private person---Scope---Prosecution case was that the accused was required in another case for offence under S.302, P.P.C., and was apprehended and a gun without licence with three live cartridges was recovered from his possession---Record showed that in the main case the complainant did not name present accused and stated that one unidentified person with muffled face armed with gun directly fired at the daughter of complainant---Complainant as well as alleged eye witnesses of the incident did not identify the present accused to be the same who fired at the deceased---In the present case there also seemed to be violation of the provisions of S.103, Cr.P.C. as no independent witness of the locality was associated as mashir of the alleged arrest of the accused and recovery of the gun from him---Appeal against conviction was allowed, in circumstances.

State v. Bashir and others PLD 1997 SC 408 rel.

(c) Sindh Arms Act (V of 2013)---

----S. 23(1)(a)---Criminal Procedure Code (V of 1898), S. 103---Recovery of fire arms---Appreciation of evidence---Delay of about four days in sending the recovered weapon for analysis---Scope---There was also unexplained delay of four days in sending the crime weapon to the Ballistic Expert---Such report of the Fire-Arm Expert was of no avail to the prosecution as the crime empties and the firearms allegedly recovered from the accused were sent to Forensic Science Laboratory after delay---Such reports of the Ballistic Expert even positive, would lose its sanctity---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

Samandar alias Qurban and others v. The State 2017 MLD 539; Yaqoob Shah v. The State 1995 SCMR 1293 and Ghulam Hussain and 2 others v. State 1998 PCr.LJ 779 rel.

Rafiq Ahmed K. Abro for Appellant.

Aitbar Ali Bullo, D.P.G. Sindh for the State.

2021 Y L R 1918

[Sindh (Sukkur Bench)]

Before Fahim Ahmed Siddiqui and Khadim Hussain Tunio, JJ

ZAFFAR---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeals Nos.D-65 of 2016, D-58, D-142, D-143 and C.P. No.D-2080 of 2018, decided on 4th August, 2020.

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

----Ss. 302(b), 324, 412, 429, 337-H(2), 337-F(i), 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, dishonestly receiving property stolen in the commission of dacoity, mischief by killing or maiming cattle of any value or any animal of the value of fifty rupees, rash and negligent act, ghayr-jaifah-damiyah, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused party while armed with deadly weapons made firing upon the complainant party, due to which, one member of complainant party was hit and died while three sustained firearm injuries, two goats also died---Accused robbed repeater, other household articles and pair of bullocks on the force of weapon---Motive behind the incident was previous litigation between the parties---Prosecution case was that complainant and witnesses did not implicate co-accused persons though recovery of robbed pair of bullocks was alleged to have been made from their possession---Complainant and witnesses disclosed in their evidence that they came to know regarding name of accused as bullocks were recovered from the culprits, whose name was disclosed to them by the police at the time of recording of their statements under S.161, Cr.P.C.---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Alisher and others v. The State 2008 SCMR 707; Ameer Ali and another v. The State 2011 SCMR 323; Muhammad Asif v. The State 2017 SCMR 486; Ghulam Mustafa and Muhammad Safdar v. The State 2009 SCMR 916; Nawab and 4 others v. The State 2020 PCr.LJ 915; Munir Ahmed alias Munni v. The State 2001 SCMR 56; Rasool Bux v. The State 1980 SCMR 225; Haroon Shafique v. The State 2018 SCMR 2118; Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344; Muhammad Mansha v. The State 2018 SCMR 772; Allah Jurio v. The State 2006 YLR 3200; Nabi Bux and another v. The State 1990 PCr.LJ 1018; Shakeel Ahmed and others v. The State 2003 MLD 1196; Iftikhar Hussain and others v. The State 2004 SCMR 1185; Ghulam Nabi Shah v. The Crown 1969 SCMR 629; Muhammad Arshad v. The State 2003 MLD 808; Bashir Ahmed alias Mannu v. The State 1996 SCMR 308; Ata Muhammad and another v. The State 1995 SCMR 599 and Irfan and another v. Muhammad Yousuf and another 2016 SCMR 1190 ref.

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

----Ss. 302(b), 324, 412, 429, 337-H(2), 337-F(i), 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, dishonestly receiving property stolen in the commission of dacoity, mischief by killing or maiming cattle of any value or any animal of the value of fifty rupees, rash and negligent act, ghayr-jaifah-damiyah, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence---Reliance---Scope---Prosecution case was that the accused party while armed with deadly weapon made firing upon the complainant party, due to which, one member of complainant party was hit and died while three sustained firearm injuries, two goats also died---Accused robbed repeater, other house hold articles and pair of bullocks on the force of weapon---Record showed that a pistol had been recovered after seven days of the arrest of accused and the place wherefrom recovery was made was not in exclusive possession of accused, rather the same was open place and easily accessible to everyone---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Sajjan Solangi v. The State 2019 SCMR 872 rel.

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

----Ss. 302(b), 324, 412, 429, 337-H(2), 337-F(i), 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, dishonestly receiving property stolen in the commission of dacoity, mischief by killing or maiming cattle of any value or any animal of the value of fifty rupees, rash and negligent act, ghayr-jaifah-damiyah, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Ocular and medical evidence--- Contradictions--- Effect---Prosecution case was that the accused party while armed with deadly weapons made firing upon the complainant party, due to which, one member of complainant party was hit and died while three sustained firearm injuries, two goats also died---Accused robbed repeater, other house hold articles and pair of bullocks on the force of weapon---Record showed that there was conflict between ocular account and medical evidence---Complainant and witnesses deposed that accused directly fired with pistol at injured which hit at his lower part of his left leg with intention to commit his qatl, whereas Medical Officer had noticed and certified that injured witness received injuries on lower part of right leg---Deceased received two injuries at the hands of co-accused but none of the witnesses had specifically disclosed the part of body of deceased received injuries whereas Medico-Legal Officer had certified injuries as lacerated punctured wound 1 cm x diameter x cavity deep on right shoulder interiorly and downward as wound of entrance and lacerated wound 3 cm x 2 cm x cavity deep on right side of chest posteriorally---Medico-Legal Officer neither noticed wound of exit at the body of deceased nor he secured any bullet or pellet from the body of deceased while conducting post-mortem---Medico-Legal Officer had given contradictory evidence during his cross-examination recorded at different time during trial of accused persons after their arrest---Medico-Legal Officer deposed that it was a fact that in the certificate of injured he had simply mentioned one injury to have been caused with fire arm but not specified whether it was caused with shotgun or K.K, but same was caused from close distance, whereas in his cross-examination he deposed that on the day of examination of injured there were two injuries on the person of deceased, which were caused by the bullet of revolver---Injuries were caused from distance of more than five feet---No blackening on said one injury, the bullet had crossed chest cavity and liver---Internal details of injuries were not shown in his Medico-Legal Certificate---Medical certificates did not show the use of weapon for injuring the said persons---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324, 412, 429, 337-H(2), 337-F(i), 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, dishonestly receiving property stolen in the commission of dacoity, mischief by killing or maiming cattle of any value or any animal of the value of fifty rupees, rash and negligent act, ghayr-jaifah-damiyah, rioting armed with deadly weapons, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Delay in sending the weapon of offence and crime empties for analysis---Scope---Prosecution case was that the accused party while armed with deadly weapons made firing upon the complainant party, due to which, one member of complainant party was hit and died while three sustained firearm injuries, two goats also died---Accused robbed repeater, other household articles and pair of bullocks on the force of weapon---Record showed that the alleged recovery of crime weapon was made and sent to Ballistic Examiner after delay of one month and five days---Such a delay was not explained by the prosecution at any point, nor did the prosecution adduce any evidence in order to establish the safe custody of the same---Empties secured from the place of occurrence were kept at Police Station and same were sent to the Ballistic Expert after recovery of alleged pistol from accused along with empties already secured from place of incident---Any such report from Ballistic Expert could not be believed in order to uphold the conviction of the accused---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Javed Khan alias Bacha and another v. The State 2017 SCMR 524; Haroon Shafique v. The State 2018 SCMR 2118 and Muhammad Asif v. The State 2017 SCMR 486 rel.

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

----S. 342---Examination of accused---Scope---All the incriminating piece 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., for the purpose of enabling the accused to explain any circumstances appearing in evidence against him---Piece of evidence which is not put to the accused in statement under S. 342, Cr.P.C., could not be used against him.

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.

Shahid Ali K. Memon for Appellant (in Cr. Jail Appeal No. D-65 of 2016).

Basheer Ahmed Almani for Appellant (in Cr. Jail Appeal No. D-58 of 2018).

Ms. Rizwana Jabeen Siddiqui for Appellant (in Cr. Jail Appeals Nos. D-142 and 143 of 2018).

Hadi Bux Bhatt for the Complainant (in Cr.J.A No.D-65 of 2016 and for Petitioner in C.P. No.D-2080 of 2018).

Sardar Ali Shah Rizvi, Deputy Prosecutor General for the State.

2021 Y L R 1948

[Sindh (Larkana Bench)]

Before Mohammad Karim Khan Agha, J

JAN MOHAMMAD alias FAQEERO SADHAYA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-78 of 2013, decided on 22nd January, 2021.

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

----Ss. 320, 279 & 427---Qatl-i-Khata, rash driving on public way, mischief causing damage to the amount of fifty rupees---Appreciation of evidence---Benefit of doubt---Promptitude in lodging the FIR---Scope---Accused was charged that he while driving the coach roughly and speedily coming at wrong side of the road hit the motorcycle of Police Officials and committed their murder and caused loss of their motorcycle and rifle---First Information Report in respect of the incident was lodged within two hours of the incident---Such prompt filing of the FIR ruled out the possibility of the complainant to concoct a false case against the accused especially, as the complainant did not have any enmity with the accused---First Information Report specifically stated that the coach driver had slipped away after the accident and was therefore not arrested on the spot and was unnamed---Prosecution had not been able to prove beyond a reasonable doubt that the accused was the person who drove the coach on the night of incident---Appeal against conviction was allowed, in circumstances.

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

----Ss. 320, 279 & 427---Qatl-i-Khata, rash driving on public way, mischief causing damage to the amount of fifty rupees---Appreciation of evidence---Benefit of doubt---Accused was charged that he while driving the coach roughly and speedily coming at wrong side of the road hit the motorcycle of Police Officials and committed their murder and caused loss of their motorcycle and rifle---Allegedly, the complainant and the staff had seen the driver properly on the headlights and bulbs glowing inside the coach---None of those bulbs were recovered---One eye-witness claimed that the head lights of the coach were smashed---None of the eye-witnesses knew or had seen the accused before---None of the eye-witnesses gave any hulia of the accused in their statements under S.161, Cr.P.C. or even in the FIR---In the month of December at 06.45 p.m. it would have been dark and potentially foggy and there was no indication in the evidence as to how far away the police eye-witnesses were when they allegedly saw the driver of the coach which could have been anything up to 50 feet away or even further---Police eye-witnesses only got a fleeting glimpse at the driver as quite naturally they were busy assisting their injured/dead colleagues who were trapped under the bus and arranging to send them to hospital---No identification parade was held to identify the accused as the person who was driving the coach at the time of the crash---No passenger on the coach at the time of the crash was called to identify the driver and it appeared that no attempt was even made to trace out the passengers for that purpose---No witness was brought for evidence that the accused worked for that particular coach company and that he was driving the coach at that date and time---No other evidence was exhibited to show that the accused was driving the coach at the time of the crash e.g. log book, company record or any other work chart showing that the accused was assigned to drive that particular coach at that particular time---Accused was arrested on spy information but that did not prove that he was the driver of the coach as the spy could have picked out any person and assigned him that role---Circumstances established that the prosecution had not been able to prove beyond a reasonable doubt that the accused was the person who drove the coach on the night of the crash---Appeal against conviction was allowed, in circumstances.

Anwar Ali Janvri for Appellant.

Ali Anwar Kandhro, Addl: P.G. for the State.

2021 Y L R 1963

[Sindh]

Before Irfan Saadat Khan and Muhammad Faisal Kamal Alam, JJ

SHAHZAD NOOR MUHAMMAD---Appellant

Versus

KARACHI GYMKHANA and 8 others---Respondents

H.C.A. No.116 of 2020, decided on 5th November, 2020.

Karachi Gymkhana Rules and Byelaws---

----Rr.13 (e) & 30---Civil Procedure Code (V of 1908), S. 10 & O.VII, R.11---Law Reforms Ordinance (XII of 1972), S. 3---Intra Court Appeal---Declaration and injunction---Rejection of plaint---Membership, suspension of---Appellant-plaintiff was member of Karachi Gymkhana Club and during suspension of his membership, Club authorities co-opted to fill up vacancy of appellant-plaintiff---Single Judge of High Court rejected the plaint on the ground that it was barred under S.10, C.P.C.---Validity---Appellant-plaintiff was neither disqualified by General Body as envisaged in R.13(e) of Karachi Gymkhana Club Rules and Byelaws, nor his suspension under R. 30 of Karachi Gymkhana Club Rules and Byelaws could be construed as such nature of vacancy which was to be filled up by co-option---Period of suspension was maximum for 180 days, therefore, appellant-plaintiff could not be co-opted by any other member---High Court set aside order of co-option as the same was illegal exercise of authorities by the club (respondents-defendants)---Club and its Managing Committee was to act fairly, justly and reasonably, in the best interest of the Club and not individuals---Under the garb of judicial proceedings, there was no absolute privilege to level bald, sweeping and scandalous allegations, which could be construed as libelous, bearing consequences---Necessary of all members of Club, including appellant-plaintiff to adhere to Rules and Byelaws of the Club and maintain harmonious environment---Division Bench of High Court set aside order passed by Single Judge of High Court and suit was restored---Intra Court Appeal was allowed accordingly.

Iqbal Umer and others v. Karachi Gymkhana, through Secretary 2017 CLC Note 173 p. 192; Karachi Gymkhana and others v. Usman Ahmed Ansari and others 2020 MLD 1073; Mirza Bashir Ahmed and another v. Habib and 6 others 2006 MLD 148; Principal, King Edward Medical College, Lahore v. Ghulam Mustafa and others 1983 SCMR 196; Major (Retd.) Ahmed Nadeem Sadal and 3 others v. Federation of Pakistan through Secretary Sport, Islamabad and 3 others 2015 CLC 34 and Muhammad Yousuf and others v. Government of Sindh and others 2017 CLC Note 159, p.177 ref.

Salman Hamid for Appellant.

Khawaja Shams-ul-Islam and Imran Taj for Respondents Nos. 1-9.

2021 Y L R 1993

[Sindh]

Before Mohammad Karim Khan Agha and Muhammad Saleem Jessar, JJ

FAZAL REHMAN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 125 of 2009 and Criminal Revision Application No.116 of 2009, decided on 19th February, 2020.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Delay of five hours in lodging the FIR---Effect---Accused was charged for committing murder of the brother of the complainant and injuring other person by firing---Record showed that the FIR was lodged promptly on the same day of the incident after only a slight delay of five hours---Said slight delay based on the facts and circumstances of the case had been fully explained as the deceased and witness were injured at the time when they were shot as such the priority was to get them to the hospital for treatment as opposed to rushing to lodge and FIR---No time was available to the complainant to cook up a false case in collusion with the police---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Accused was charged for committing murder of the brother of the complainant and also injured other person by firing---Record showed that the4 accused was named in the FIR and had been given the specific role of firing on the deceased which bullet passed through the deceased and also hit the witness---Ocular account of the incident had been furnished by three witnesses including complainant, (injured) and a witness---Complainant was a natural witness, who knew the accused as they were neighbours and it was a day time incident---Reason for the firing was a dispute over construction and as such the identity of the accused was not doubtful---No enmity between the complainant, deceased or any other witness existed as admitted by the accused in his evidence---Complainant had no reason to falsely implicate accused in the case---Evidence of complainant was not damaged during cross-examination, as such evidence of complainant was considered to be reliable, trust worthy and confidence inspiring and reliance could be placed and believed the same---Eye-witness was the contractor and was present on the roof of the house during the construction work, therefore, he was a natural witness and not a chance witness---Said contractor, in his evidence, corroborated complainant in all material respects---Injured eye-witness corroborated the evidence of the other two eye-witnesses but stated in his evidence that he did not see as to who shot him---Said witness was a natural witness who had no reason to falsely implicate anyone and as such his evidence was believable---Injured witness appeared to have been behind the deceased as the bullet passed through the deceased and then hit him, it might well be that he did not see or know who shot him---All the witnesses were consistent in their evidence and even if there were some contradictions in their evidence, which were minor in nature and not material and certainly not of such materiality so as to effect the prosecution case and the conviction of the accused---Evidence of said witnesses provided a believable corroborated unbroken chain of events from the exchange of hot words between the accused and the complainant party about the construction work to the murder of the deceased on the roof by the accused by fire-arm to the arrest of the accused and the recovery of the murder weapon (pistol) on his pointation---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed, in circumstances.

Nazar Hussain v. The State PLD 2010 SC 1021; Muhammad Ishtiaq v. The State PLD 2008 Isl. 21; Azmat Ullah v. The State 2014 SCMR 1178; Khadim Hussain v. The State 2015 MLD 543; Ashraf Ali alias Jamat Ali v. The State 2013 PCr.LJ 872; Ghulam Mohy-ud-Din v. The State 2014 SCMR 1034 and Dr. Javid Akhtar v. The State PLD 2007 SC 249 ref.

Zakir Khan v. State 1995 SCMR 1793 rel.

(c) Criminal trial---

----Witnesses---Statement of sole eye-witness---Scope---Conviction could be made even, if the direct oral evidence of one eye-witness is reliable, trust worthy and confidence inspiring.

Muhammad Ehsan v. The State 2006 SCMR 1857 rel.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Ocular and medical evidence---Corroboration---Accused was charged for committing murder of the brother of the complainant murder of the brother of the complainant and also injuring other person by firing---Record showed that the medical evidence was corroborative/ supportive of the eye-witness evidence in terms of the number of injuries received by the deceased and the injured, the place where the injuries were received and the weapon used to inflict those injuries fire-arm---Appeal against conviction was dismissed, in circumstances.

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

----Ss.302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon and crime empty---Reliance---Scope---Accused was charged for committing murder of the brother of the complainant and also injuring other person by firing---Only one empty was recovered from the scene of the incident which corroborated the prosecution story whereby only one shot was fired---Accused after his arrest took the police to his house and showed them the iron box in which he had hidden the murder weapon, which only he could have known about and not the police---Recovered pistol and empty proved positive in the Forensic Science Laboratory Report---Even if there was some delay in sending the empty and or the pistol to the Forensic Science Laboratory that was not fatal to the prosecution's case, especially when there had been no suggestion of any tampering---Appeal against conviction was dismissed, in circumstances.

Muhammad Ashraf v. The State 2011 SCMR 1046 rel.

(f) Criminal trial---

----Witness---Evidence of Police Officials---Scope---Police witnesses were as reliable as any other witness unless any illwill or enmity had been attributed to them.

(g) Criminal trial---

----Witness---Related and interested witness---Statement of related and interested witness---Reliance---Scope---Relation did not make witness interested witness and unreliable, unless he had reason to falsely implicate the accused or he was biased, or partisan to the accused.

Ijaz Ahmed v. The State 2009 SCMR 99 rel.

Zulfiqar Ali Langah for Appellant (in Criminal Appeal No. 125 of 2009).

Muhammad Iqbal Awan, Deputy Prosecutor General for the State (in Criminal Appeal No. 125 of 2009)..

Arshad H. Lodhi for the Complainant (in Criminal Appeal No. 125 of 2009).

Arshad H. Lodhi for Applicant (in Criminal Revision Application No.116 of 2009).

Zulfiqar Ali Langah for Respondent (in Criminal Revision Application No.116 of 2009).

2021 Y L R 2010

[Sindh (Sukkur Bench)]

Before Aftab Ahmed Gorar and Fahim Ahmed Siddiqui, JJ

FAHEEM ALI and another---Petitioners

Versus

PROVINCE OF SINDH through Secretary Local Government, Karachi and 6 others---Respondents

Constitution Petition No. D-1640 of 2019 and D-1892 of 2018, decided on 31st March, 2021.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Dog bite cases---Role of elected members---Recalling of order---Due to rise in dog bite cases in the Province and lack of medical facilities, High Court suspended memberships of Members of Provincial Assembly, on account of their failure to curb dog bite cases in their constituencies---Members of Provincial Assembly undertook to supervise ongoing drive against culling of dog bite cases in future and had also assured that no dog bite case would happen in their constituencies--- Effect--- High Court recalled its order of suspending membership of Members of Provincial Assembly---High Court directed health authorities to do the needful as per their undertaking given before Court---High Court directed Provincial Government to pay compensation in shape of Diyat, Arsh or Daman amount (as the case could be) in terms of amount specified through latest notification issued by Government of Pakistan to bereaved families of deceased who died of dog bite cases within 15 days' time after claim of legal heirs of deceased and injured persons---Petition was allowed accordingly.

Mohammad Raza Soomro for Petitioner (in C.P. No.D-1892 of 2018)

None present for Petitioner (in C.P. No.D-1640 of 2019).

Khuda Bux Chohan and Shabir Ali Bozdar on behalf of some Municipal Committees/Town Committees.

Farooque H. Naik, Qurban Ali Malano and Zia-ul-Hassan Lanjar for intervenors.

Abdul Basit Shaikh, Shahid Hussain Jatoi, Imtiaz Suleman Shah Legal Advisors of Municipal Committees.

Shafi Muhammad Chandio, Addl.A.G and Mehboob Ali Wassan, Assistant A.G along with Kazim Hussain Jatoi, Secretary Health Department Government of Sindh Karachi, Najam Ahmed Shah, Secretary Local Government, Government and HTP Department Government of Sindh, Dr. Jamil Ahmed, Focal person on behalf of DHO Sukkur, Dr. Javed Anwar Abbasi on behalf of Administrator Larkana, Inspector Muharam Ali on behalf of SSP Mirpur Khas, Mushtaque Ahmed on behlalf of SSP Larkana, Shakeel Ahmed SDPO Doulat pur on behalf of SSP Shaheed Benazirabad, Inspector Aftab Ahmed Farooqi, Focal person on behalf of SSP Ghotki, Ghulam Muhammad Mahessar, DSP/SDPO Mehar and Inspector Ali Muhammad Udho on behalf of SSP Jacobabad, Pir Atta-u-Rehman, CMO SMC, Sukkur, Aijaz Nisar Ahmed, CMO Dadu, Khuda Bux Sehwani, CMO Kotri, Aijaz Ali Notkani, TO, TC Chamber, Shahmir Khan Rahpoto, TO TC, Bhan Saeedabad, Nazeer Ahmed TO TC Jhol District Sanghar, Ghulam Sarwar Office Superintendent on behalf of Administrator MC Sinjhoro, Abdul Rehman Rajput, Assistant on behalf of Town Officer TC Sakrand, Munawar Hussain, TO TC Jati and Chohar Jamali, Abdul Karim Kumbhar, TO TC, Garho District Thatta, Lal Bux, Council Officer Municipal Committee Thul, Imdad Hussain Khokhar, TO TC Chak, Sabir Ali TO TC Miro Khan, Hafeez Ahmed Wagan, TO TC Bhirya Road, Muhammad Aslam, CMO Tando Jam, Abdul Rasheed Lund, TO TC Nau Kot District Mirpur Khas, Javed Ali Jatoi, CMO Tando Muhammad Khans, Arshad Ali, TO TC Jamshoro, Noor Ahmed, TO TC Tando Mitha Khan District Sanghar, Abdul Ghafoor, TO TC Gharo, Mumtaz Ali Palijo, TO TC Ghora Bari, Mohsin Ali Shah, TO TC, Hala Old District Matyari, Zulfiqar Ali Lakho, TO TC Udero Lal Station District Matyari, Faisal Hassan Dihiro, TO TC Qazi Ahmed, Irshad Ali Zardani, TO Darya Khan Mari, Muhammad Hashim Abro, TO TC Badah District Larkana, Agha Abid Hussain, CMO MC. Thatta, Naseer Ahmed Solangi, Focal person on behalf, TO TC Kumb, Ghulam Nabi Dahiri, TO TC Doulatpur and reply of Show-cause notice, Rizwan Ali Sangi, TO TC Dokri, Mumtaz Ali Channa, TO TC Jhudo, Sajid Ali Solangi, TO TC Ahmed Pur, Fayaz Ali Shah, TO TC Piyaro Lund alias Jhando Mari, Abdul Hameed Mango, TO TC Mirpur Bathro District Sajawal Saddaruddin Khan, Accounts Officer on behalf of TO TC Bhirya City, Abdul Khaliq Samo on behalf of CMO MC Umer Kot, Mehboob Ali Buriro, CMO MC Hala, Sikandar Ali Bijarani, TO TC Tharushah, Abdul Ghafoor, TO TC Chour Taluka Umer Kot, Muneer Ahmed Kaleri, TO TC Jam Sahib, Abdul Waheed Doimki, TO TC Kashmore, Zahid Qadir, Sr. Clerk on behalf of TO TC Dhoro Naro Taluka Umer Kot, Irshad Ali Khaskheli, TO TC Mirwah Gorchani District Mirpur Khas, Parvez Ahmed Wassan, TO TC Fakirabad, Inspector Javed Iqbal Shaikh on behalf of SSP Sukkur, Rasool Bux Chachar, TO TC Guddu, Muhammad Mushtaque, TO TC Kario Ganwar, Ghulam Akber, TO TC Hingorja, Juma Khan, TO TC Sanjar Khan, Gul Bahar Rind, TO TC Sarhari, Muhammad Rafique Buledi, CMO Jacobabad, Anees-u-Rehman, TO TC Sultanabad, Asghar Ali Wassan, TO TC Kot Diji, Sabir Hussain Magsi, TO TC Sijawal Junejo, Ghulam Shabir, TO TC Bandhi, Abdul Hakeem Nasirani, CMO Khipro, Ali Nawaz Hingoro, TO TC Khadro, Zafar Ali Domki, TO TC Buxapur, Niaz Hussain Babar, CMO Rato Dero, Dil Murad Magsi, TMO Qubo Saeed Khan, Javed Ahmed Arbabani, TO TC Madeji, Salman Khan Lund, CMO Mirpur Mathelo, Abdul Sami Lashari Accountant, TO Garhi Khairo, Aijaz Ali Shah, TO TC Their, Mansoor Hussain Abro, TO TC Rohri, Israr Ahmed Taxartion Officer, MC Shahdapur, Darya Khan Magsi, TO TC Nangar parkar, Khuda Bux Sehwani, TO TC Thanoi Bulakhan and Kotri, Ashok Kumar, TO TC Shaheed Fazil Rahu Golarchi, Aftab Raza Shah, TO TC Gerelo, Zulfiqar Ali Bhurro, CMO MC Khairpur , Nadeem Hyder Jalbani, CMO Pir Jo Goth , Hafiz Mushtaque Ali Korejo, CMO Nau Dero, Aftab Ahmed, TO TC Bhirya Road, Mukhtiar Ali Dayo, TO TC Khanpur, Ali Ahmed Solangi, CMO TC K.N Shah, Jamshed Ahmed, TO TC Ghouspur, Imran Ali Jhatiyal. TO TC Seeta Road, Noor Muhammad Samo. CMO MC Moro, Abdul Jabbar Korai, TO TC Jatia, Javed Ahmed Dahiri Administrator, MC Shahdapur, Muhammad Azam Brohi, CMO MC Sehwan Sharif and reply of show-cause notice. Amir Ali Bhutto, TO TC Behram, Saleem Akhtar Memon, TO TC Kandiaro, Noor Ahmed Shaikh, TO TC Karampur, Zulfiqar Marfani, TO TC B. Shah Karim, Ali Raza Jessar, CMO Tando Allah Yar, Shoukat Ali Memon, TO TC Tando Jan Muhammad, Yousif Sodho TO TC Manjhand, Saadat Noor Office Superintendent on behalf of CMO Tando Adam, Liaqat Ali Bhatti, TO TC Bhit Shah, Ashique Ali Kalhoro, TO TC Ubauro, Muhammad Usman Qaimkhani TO TC Islamkot, Abdul Ghaffar Jatoi, TO TC Kot Ghulam Muhammad Yousif Sodho, Illahi Bux Bambhan, TO TC Agra, Abid Latif, CMO MC Shikarpur, Maqsood Ali Jatoi, TO TC Daharki, Kandhkot, Asif Iqbal Jagirani, TO TC Lakhi, Shaharyar Kharal, TO TC Gambat and Khuhra, Munir Ahmed Solangi, OS MC Dadu, Abid, CMO MC Bulhari, Iftikhar Hussain, TO Tando Ghulam Ali.

2021 Y L R 2022

[Sindh (Larkana Bench)]

Before Naimatullah Phulpoto, J

ALI JAN---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-16 of 2019, decided on 26th November, 2020.

(a) Criminal trial---

----Witness---Related witness---Reliance---Scope---Merely because witnesses or the eye-witnesses were relatives by itself was no ground to reject their evidence---Witnesses being relatives normally would like to bring truth before the court.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Accused was charged that he and co-accused committed murder of the deceased by firing---In the present case, incident had occurred in front of a shop situated in village and it was daytime incident---Presence of the eye-witnesses at the place of incident at the relevant time had been fully established for the reason that houses of eye-witnesses were situated around the place of incident---Non-examination of shopkeeper would not be fatal to the case of prosecution, because he was sitting in his shop, no eye-witness had deposed that said shopkeeper had witnessed the incident---Ocular evidence was corroborated by the medical evidence---Five crime empties of 30-bore were recovered from the place of incident---Record showed that accused absconded after the commission of offence and challan was submitted under S.512, Cr.P.C.---Three witnesses had appeared as eye-witnesses during trial and remained firm on all major particulars of the case i.e. date, time and place of occurrence and despite lengthy cross-examination their credibility could not be shaken---Witnesses had no enmity with the accused to falsely implicate him in the case---Incident had taken place at 5.00 p.m. whereas the FIR was registered on the same day at 9.00 p.m., wherein the accused was specifically nominated with a specific role---Circumstances established that the impugned judgment did not call for interference---Appeal against conviction was dismissed accordingly.

(c) Criminal trial---

----Witness---Related and interested witnesses--- Reliance--- Scope--- Merely because the witnesses were kith and kin, their evidence could not be rejected, if otherwise it was trustworthy---Related witnesses some time, particularly in murder cases, might be found more reliable, because they, on account of their relationship with the deceased, would not let go the real culprit to substitute an innocent person for him.

Khair Muhammad and another v. The State 2007 SCMR 158 rel.

(d) 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 was charged that he and co-accused committed murder of the deceased by firing---Record showed that the complainant had deposed that after the incident, he took the injured to the Hospital, where doctors declared him dead---Complainant brought the dead body at another hospital for post-mortem and left witnesses over the dead body, thereafter, he went to police station and lodged FIR---No benefit was derived by the complainant from lodging the FIR with delay of 04 hours---Delay in lodging the FIR had been fully explained---Circumstances established that the impugned judgment did not call for interference---Appeal against conviction was dismissed accordingly.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive proved---Scope---Accused was charged that he and co-accused committed murder of the deceased by firing---Motive as set up in the FIR was that accused persons declared deceasedas "Karo"---Motive had been established at trial by the eye-witnesses of the incident---Circumstances established that the impugned judgment did not call for interference---Appeal against conviction was dismissed accordingly.

Faiz Mohammad Larik for Appellant.

Ali Anwar Kandhro, Additional Prosecutor General for the State.

2021 Y L R 2057

[Sindh (Hyderabad Bench)]

Before Adnan-ul-Karim Memon, J

PERVEZ LAGHARI---Petitioner

Versus

Mst. NASEEMA and another---Respondents

C. P. No. S-153 of 2020, decided on 21st August, 2020.

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

----S. 14(2)(b)---Constitution of Pakistan, Art. 199---Decree of dowry articles up to Rs. 100,000/---Bar on appeal---Constitutional petition by husband/ judgment-debtor--- Maintainability--- Held, that under S.14(2)(b) of Family Courts Act, 1964, no appeal was entertainable against decree of dowry articles up to Rs. 100,000/----Since appeal was not provided by the statute, constitutional petition, in the case, was not competent as there was no mis-reading or non-reading of evidence floating on the surface of record---Respondent/wife had not preferred appeal against the decree of dowry articles---Petitioner had failed to point out any mis-reading or non-reading of evidence, infirmity or gross illegality or some jurisdictional defects in the findings of both the Courts below---Constitutional petition, being not maintainable, was dismissed in limine, in circumstances.

(b) Family Courts Act (XXXV of 1964)---

----Ss. 5 & 14(2)(c)--- Maintenance allowance for the wife not residing with her husband---Scope---Decree of maintenance allowance up to Rs.5000/---Bar on Appeal---Petitioner (husband) contended that respondent (wife) was not entitled for maintenance allowance as she was not willing to reside with him; and was only willing to pay maintenance allowance for the minor living with her (mother)---Held, that maintenance allowance was a matter of right of minor as well as wife who were constrained to live a deserted life---Even otherwise, in the present case, no appeal would lie as decreefor monthly maintenance allowance to both (minor and wife) had been passed to the tune of Rs. 5000/- or less---Constitutional petition was dismissed.

(c) Family Courts Act (XXXV of 1964)---

----S. 14(2)(c)---Decree of maintenance allowance up to Rs. 5,000/- of minor and wife each---Appeal filed by husband/ judgment-debtor--- Maintainability--- Held, that S.14(2)(c) of the Family Courts Act, 1964 had mentioned the amount of maintenance allowance for a single person and not the cumulative one for all the minor(s) and wife---Since the amount of maintenance allowance decreed/granted to respondent/wife was less than Rs. 5000/-, the appeal was not maintainable in view of S.14(2)(c) of the Family Courts Act, 1964---Appellate Court had rightly rejected the appeal of the petitioner---Constitutional petition dismissed.

Pir Bux Laghari for Petitioner.

2021 Y L R 2075

[Sindh]

Before Nazar Akbar and Zulfiqar Ahmad Khan, JJ

MUHAMMAD JAVED through Superintendent, Central Prison---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorim Jail Appeal No. 81 of 2020, decided on 18th December, 2020.

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

----Ss. 324, 353 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused persons made firing upon the police party, the police also fired in retaliation, resultantly, two persons received firearm injuries and died on the spot---Admittedly in the encounter, only two shots were fired by four accused persons moving on motorcycles---In retaliation, police also fired three shots from their official weapons---Two shots hit one each in the head of two accused and both were succumbed to the injuries on the spot within five minutes---Accused/appellant was not even injured when he was arrested by the police and fourth accused managed to escape---Ocular evidence of private witnesses had totally negated the possibility of encounter---Eye-witnesses had stated that they did not see the accused firing at the police thus, both were not witnesses of any encounter---Another setup witness/rickshaw driver also had not seen the encounter---Evidence of the private witnesses confirmed that they had not seen the encounter---Question was as to how and when such a serious threat was felt by the police to kill two persons in retaliation of their firing on the police---Prosecution had failed to bring on record the nature of urgency and the seriousness of life threat received from the fleeing accused party to permit fatal injuries on their heads in the name of retaliation with their high velocity weapons, that too, from a distance of just two feet or so---None of the two bullets purportedly fired by the accused party had caused any injury to any policemen nor hit any passer by or police mobile etc., meaning thereby that there was no rapid firing from the opposite party, thus, there was no occasion for killing of two persons from a point blank range even if they had fired at the police party---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Imran v. The State 2002 SCMR 857; Abid and another v. The State 2019 YLR 613; Muhammad Umair v. The State 2017 YLR 1097; Syed Maroof Shah v. The State 2019 PCr.LJ Note 108; Muhammad Shahid v. The State 2018 MLD 1897; Anwar Hussain v. The State 2019 YLR 1117; Zulqarnain alias Suleman v. The State 2019 PCr.LJ Note 64; Tasaddaq Hussain alias Idnan v. The State 2019 PCr.LJ 160; Haji Noor Muhammad v. The State 2019 YLR Note 94 and Mulauddin and another v. The State 2019 YLR Note 31 ref.

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

----Ss. 324, 353 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Medical evidence---Scope---Prosecution case was that the accused persons made firing upon the police party, the police also fired in retaliation, resultantly, two persons received firearm injuries and died on the spot---In the present case, the brutality of police in firing on the fleeing accused party could be appreciated from the evidence of Medical Officer, who examined the dead bodies---Police Surgeon reported that he found dead bodies as fresh, general features identifiable and there was no sign of putrification and decomposition---Both post-mortem reports, had the findings of Medico-Legal Officer on duration of injuries to death and death to post-mortem were same and internal examination of head and opinion was also identical---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 324, 353 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence and crime empties---Scope---Prosecution case was that the accused persons made firing upon the police party, the police also fired in retaliation, resultantly, two persons received firearm injuries and died on the spot---Record showed that only three shots were fired by the four accused, one each by two deceased and one by the accused/ appellant, whereas police had alleged recovery of three TT pistols and three empties of TT pistols and three shells of SMG---Forensic Science Laboratory Report belied the story of encounter---Forensic Science Laboratory Report showed that out of three empties of 30 bore pistol, one empty was not fired from any of the three TT pistols allegedly recovered by the police---Meaning thereby that out of four accused at least two of the accused had not even fired at the police---Police claimed to have fired three shots with their official weapon and out of them two hit (one each) the two deceased in their heads respectively---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 324, 353 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Delay of four days in sending the recovered weapons and empties for analysis---Scope---Prosecution case was that the accused persons made firing upon the police party, the police also fired in retaliation, resultantly, two persons received firearm injuries and died on the spot---Forensic Science Laboratory Report showed that Investigating Officer had only sent three allegedly recovered pistols and empties after four days to the forensic laboratory, without any explanation---SMGs of Police Officials had not been sent, which were used in the encounter---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Mohammad Hayat and 3 others v. The State 2018 PCr.LJ Note 61 rel.

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

----Ss. 324, 353 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Case property, sealing of---Prosecution case was that the accused persons made firing upon the police party, the police also fired in retaliation, resultantly, two persons received firearm injuries and died on the spot---Evidence revealed that the empties and pistols purportedly recovered from the deceased accused and the accused/ appellant were not sealed on the spot---Other items claimed by the witnesses to be their robbed articles were also not sealed on the spot---Seizure memo did not mention that the property was sealed on the spot---First Information Reports in cases of encounter and arrest of culprits on the spot, were always registered subsequent to the arrest and seizure of weapons and, details of seizures were always mentioned in the FIRs---Perusal of contents of FIR showed that facts about sealing of the property on the spot was not mentioned in it---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 324, 353 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Criminal record of accused---Scope---Prosecution case was that the accused persons made firing upon the police party, the police also fired in retaliation, resultantly, two persons received firearm injuries and died on the spot---In the present case, the record did not show any CRO of the deceased accused or the accused/ appellant--- Prosecution had not mentioned any criminal record of the accused/appellant and the deceased in the challan, nor even before that Court any impression had been given that the accused persons were hardened criminals and, therefore, their immediate killing could be justified by the police---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 324, 353 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Defective inquiry and investigation---Effect---Prosecution case was that the accused persons made firing upon the police party, the police also fired in retaliation, resultantly, two persons received firearm injuries and died on the spot---Criminal negligence of Police Officials in inquiry and investigation of the case in hand as noted was that there were no details of two motorcycles taken into possession by the police after the encounter---Investigating Officer had not made any inquiry about ownership of the said motorcycles from excise and taxation department to ascertain ownership nor did they check status of the said motorcycles from the records of CPLC---Accused in his statement under S.340(2) of the Cr.P.C. in reply to a question said that motorcycle was his but not registered in his name---Accused was arrested while selling biscuits on motorcycle---Said motorcycles were not even produced in the Trial Court nor there was any order of the Trial Court in terms of S.517 of the Cr.P.C. for disposal of those two motorcycles---Circumstances suggested that it was not supposed to be booty for the police involved in the encounter to become its owner---Wilful failure of the Investigating Officer to find out details of ownership of motorcycles and more importantly his failure to send the official SMGs to Forensic Laboratory for its examination by all means was deliberate and with ulterior motives---Ulterior motives were that motorcycles, as generally believed were in use of Police Official and sending weapons for forensic might expose the person/ policeman who actually killed the victim and in case of fake encounter, nobody should be identified as killer(s) of two citizens through scientific evidence---Police officials in their own evidence, stated that in the alleged encounter they had used official SMGs in retaliation to the firing from the two deceased victims and their accomplices including the accused---Only three empties of SMG were secured from the spot and three empties of 30 bore pistol said to have been fired by the accused party were secured, though no injury was caused to any Police Official or passerby or any police mobile---Out of three empties of 30 bore pistol, one did not even match with the pistol said to have been recovered either from the deceased or the accused---Allegation of robbery and the encounter came on the record at least, in present case, could not be proved because the memo of seizure and arrest did not show that any empty of 30 bore pistols or any other pistol and the so-called robbed articles were sealed on the spot---Failure of seizure of the property on the spot could only lead to believe that nothing was recovered from the deceased and the present accused---Investigation of the case was not done in accordance with the Police Rules, 1934---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Fawad Ali Khichi for Appellant.

Ms. Rubina Qadir, Deputy Prosecutor General Sindh for the State/ Respondent.

2021 Y L R 2107

[Sindh (Hyderabad Bench)]

Before Mohammad Karim Khan Agha and Abdul Mobeen Lakho, JJ

Syed ALTAF HUSSAIN SHAH and 3 others---Appellants

Versus

The STATE---Respondent

Sp. A.T.A. Appeal No. 175 of 2019 and Confirmation Case No.7 of 2019, decided on 4th May, 2021.

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

----Ss. 302(b), 376 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, rape, common intention, act of terrorism---Appreciation of evidence---Sentence, reduction in---Non-recovery of weapon of offence---Effect---Prosecution case was that seven years old minor girl/sister of the complainant had been raped and strangulated to death by the accused---Admittedly, there was no eye-witness to the deceased being raped and murdered by the accused or anyone else---No recovery was made from any of the accused---Recovery was irrelevant in a rape case coupled with murder through strangulation based on the particular facts and circumstances of the case---In case of manual strangulation no recovery was expected to be made from a rapist---Circumstances established that the prosecution had proved its case against all the accused---However, as the prosecution case was based on circumstantial evidence, thus, it would be appropriate to reduce the death sentence for all the accused to one of life imprisonment---Appeal against conviction was dismissed with said modification in sentence.

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

----Ss. 302(b), 376 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, rape, common intention, act of terrorism---Appreciation of evidence---Sentence, reduction in---Delay of twenty six hours in lodging the FIR---Effect---Prosecution case was that seven years old minor girl/sister of the complainant had been raped and strangulated to death by the accused---Record showed that FIR was lodged, a day after the murder---Delay in lodging the FIR was twenty six hours---Said delay, however, had been explained by complainant and according to his evidence he was working in other city---Complainant stated that on the day of the murder he was informed that his youngest sister had died---Complainant immediately rushed to his city and reached there on the next day---Complainant went to Police Station where he came to know that his sister had been raped and murdered by strangulation---Another sister of complainant told him that she had suspicion on her uncle and his sons and on another person that they had raped and murdered her young sister---Complainant then immediately recorded his statement under S.154, Cr.P.C., at Police Station which became the FIR---In such circumstances, it could be said that the complainant consulted with his other sister---Complainant being not present at the time of the incident, he wanted to know as to what had happened, sister of deceased was living in the same house that she told his brother about the suspects---Said fact was only natural that complainant wanted to gather first hand information from her sister---Complainant then immediately narrated the facts of the case which had been told to him and were already known to the police in his S.154, Cr.P.C statement---Only addition apart from what was already known by the complainant about the incident was that it was added in the FIR that he came to know that the accused committed the crime against his sister---Nothing had been cooked up by the complainant after consultation with his sister except that the finger of suspicion had been pointed at the four accused by his sister---Complainant had no reason to falsely implicate the accused in the case as no enmity or ill-will existed between them---Circumstances established that the prosecution had proved its case against all the accused, however, as the prosecution case was based on circumstantial evidence, thus, it would be appropriate to reduce the death sentence for all the accused to one of life imprisonment---Appeal against conviction was dismissed with said modification in sentence.

Tariq Pervez v. The State 1995 SCMR 1345; Mst. Zohra Bibi v. The State 2013 PCr.LJ 772; Hashim Qasim and another v. The State 2017 SCMR 986; Said Muhammad v. The State 2009 PCr.LJ 604; Muhammad v. The State 2009 PCr.LJ 608; Khani Zaman v. The State 1983 SCMR 573; Raza and another v. The State and 2 others PLD 2020 SC 523; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; Kareem Nawaz Khan v. The State through PGP and another 2016 SCMR 291; Kaleemullah v. The State and another 2018 YLR 2363; Shakir Muhammad alias Shakeel and another v. The State 2019 PCr.LJ Note 120; Ali Haider alias Papu v. Jameel Hussain and others PLD 2021 SC 362; Afaq Ahmed v. The State 2020 YLR 676; Muhammad Akram v. The State 2009 SCMR 230; Ali Gul v. The State 2020 MLD 952; Muhammad Jabran and others v. The State 2020 SCMR 1493; Lal Khan v. The State 2006 SCMR 1846; Muhammad Ehsan v. The State 2006 SCMR 1857; Nazeer Ahmed v. The State and others 2019 SCMR 594; Salman Akram Raja and another v. Government of Punjab through Chief Secretary, Civil Secretariat, Lahore and others 2013 SCMR 203; Ali Haider alias Papu v. Jameel Hussain and others PLD 2021 SC 362; Sheraz Mehmood v. The State and another 2005 YLR 2467; Muhammad Ali v. The State 2020 MLD 1447; Zahid and another v. The State 2020 SCMR 590; Imran Ali v. The State 2018 SCMR 1372; Noor Muhammad v. The State 1999 SCMR 2722 and Dadullah and another v. The State 215 SCMR 856 ref.

Zahid v. State 2020 SCMR 590 rel.

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

----Ss. 302(b), 376 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, rape, common intention, act of terrorism---Appreciation of evidence---Sentence, reduction in---Related and interested witnesses---Scope---Prosecution case was that seven years old minor girl/sister of the complainant had been raped and strangulated to death by the accused---Admittedly, the complainant was related to the deceased and the accused persons---Evidence of related witnesses could not be discarded unless there was some ill-will or enmity between the witnesses and the accused, which had not been proven in the case by any reliable evidence---Circumstances established that the prosecution had proved its case against all the accused---Prosecution case was based on circumstantial evidence, thus, it would be appropriate to reduce the death sentence for all the accused to one of life imprisonment---Appeal against conviction was dismissed with said modification in sentence.

Ijaz Ahmed v. The State 2009 SCMR 99 rel.

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

----S.164---Retracted judicial confession---Scope---Retracted judicial confession could be relied upon provided that it was made voluntarily, truthful and no major procedural irregularities had been committed whilst it was recorded.

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

----Ss. 302(b), 376 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, rape, common intention, act of terrorism---Appreciation of evidence---Sentence, reduction in--- Confessional statement of accused---Scope---Prosecution case was that seven years old minor girl/sister of the complainant had been raped and strangulated to death by the accused---Admittedly, the confession was made after the accused had been in police custody for about six days, however, there was no hard and fast rule as to the time when a confession could be made although the later it was made the less weight it should be given---Evidence did not suggest that the confession was not voluntary and it appeared to be truthful in most respects, fit in with the prosecution case and nearly all of the key procedural requirements were made by the Judicial Magistrate, thus, the confession of the accused was believable---Circumstances established that the prosecution had proved its case against all the accused, however, as the prosecution case was based on circumstantial evidence, thus, it would be appropriate to reduce the death sentence for all the accused to one of life imprisonment---Appeal against conviction was dismissed with said modification in sentence.

Ch. Muhammad Yaqoob v. The State 1992 SCMR 1983; Bahadur v. State PLD 1996 SC 336; Manjeet Singh v. State PLD 2006 SC 30; Muhammad Amin v. The State PLD 2006 SC 219 and Azeem Khan v. Mujahid Khan 2016 SCMR 274 rel.

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

----Ss. 302(b), 376 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, rape, common intention, act of terrorism---Appreciation of evidence---Sentence, reduction in---DNA test---Scope---Prosecution case was that seven years old minor girl/sister of the complainant had been raped and strangulated to death by the accused---In the present case, the complete chain of custody was maintained for all items which were sent for DNA testing---No allegation was even made of tampering with any part of the DNA report or the items which were sent for DNA testing---DNA report was legally admissible in court and indeed went unchallenged by the accused persons---Circumstances established that the prosecution had proved its case against all the accused, however, as the prosecution case was based on circumstantial evidence, thus, it would be appropriate to reduce the death sentence for all the accused to one of life imprisonment---Appeal against conviction was dismissed with said modification in sentence.

Ali Haider alias Pappu v. Jameel Hussain and others PLD 2021 SC 362 rel.

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

----Ss. 302(b), 376 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, rape, common intention, act of terrorism---Appreciation of evidence---Sentence, reduction in---Police witnesses---Scope---Prosecution case was that seven years old minor girl/sister of the complainant had been raped and strangulated to death by the accused---Record showed that the police witnesses had no enmity or ill-will towards the accused and had no reason to falsely implicate them in the case by making up their arrest at the bus area---Evidence of the police witnesses could be fully relied upon---Circumstances established that the prosecution had proved its case against all the accused, however, as the prosecution case was based on circumstantial evidence, thus, it would be appropriate to reduce the death sentence for all the accused to one of life imprisonment---Appeal against conviction was disposed of with said modification in sentence.

Mushtaq Ahmed v. The State 2020 SCMR 474 rel.

(h) Criminal trial---

----Contradictions in the statements of witnesses---Effect---If there were some contradictions in the evidence of witnesses and such were minor in nature and not material and certainly not of such materiality so as to affect the prosecution case and the conviction of the accused.

Zakir Khan v. State 1995 SCMR 1793 and Khadim Hussain v. The State PLD 2010 SC 669 rel.

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

----Ss. 302(b), 376 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, rape, common intention, act of terrorism---Appreciation of evidence---Sentence, reduction in---Prosecution case was that seven years old minor girl/sister of the complainant had been raped and strangulated to death by the accused---All the prosecution witnesses stated under S.161, Cr.P.C. with promptitude which left no time for collusion or concoction---No improvements in the evidence were found, which they gave in court as prosecution witnesses under oath so as to render their evidence at trial unreliable---None of the evidence of any witness was dented on cross-examination so as to render their evidence unreliable---Such evidence was given in a straightforward manner and was confidence inspiring---It did not appeal to logic, reason or commonsense that the complainant would allow the real rapists and murderers of his baby sister to go scot free by substituting them with innocent people---Circumstances established that the prosecution had proved its case against all the accused, however, as the prosecution case was based on circumstantial evidence, thus, it would be appropriate to reduce the death sentence for all the accused to one of life imprisonment---Appeal against conviction was dismissed with said modification in sentence.

Allah Ditta v. State PLD 2002 SC 52 rel.

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

----Ss. 302(b), 376 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, rape, common intention, act of terrorism---Appreciation of evidence---Sentence, reduction in---Scope---Prosecution case was that seven years old minor girl/sister of the complainant had been raped and strangulated to death by the accused---Brutal crime was committed by accused against a minor seven years old girl, which would justify the death penalty for each of the accused persons, however, as the prosecution case was based solely on circumstantial evidence which needed to be considered with a great deal of caution especially in a capital case, thus, it would be appropriate to reduce the death sentence for all the accused to one of life imprisonment in respect of each count in which they were sentenced to death---Appeal against conviction was dismissed with said modification in sentence.

Mamoon A.K. Sherwani for Appellants.

Mohammad Iqbal Awan, Deputy Prosecutor General for the State.

2021 Y L R 2147

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi, J

RAWAT and 3 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. S-114 of 1998, decided on 17th February, 2020.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused were charged that he and co-accused committed murder of two brothers of the complainant by firing---Motive behind the occurrence was previous enmity---On perusal of record, it appeared that name of present accused was neither appearing in the FIR nor in the evidence of complainant as well as of eye-witness---Perusal of evidence of Investigating Officer revealed that he in his cross-examination had stated that eye-witness had not disclosed name of accused in his statement under S.161, Cr.P.C.---Complainant in his evidence while corroborating the contents of his FIR had not stated anything about present co-accused whether he was present at the vardat or not---Eye-witness of the incident had also not disclosed anything about co-accused in his evidence before the Trial Court---Accused in his statement under S.342, Cr.P.C., had neither implicated nor suggested any role to present co-accused in the commission of offence---Said circumstances proved that co-accused had been falsely involved in the case by the Investigating Officer due to some ill-will or otherwise---Said aspect of the case found support from the fact that no recovery of any incriminating article was shown to have been made from accused---Perusal of impugned judgment showed that mere presence of co-accused along with accused at the place of incident had been shown but the same had not been proved by bringing any cogent and unimpeachable evidence on record---Except statement of accused before the police, which was not admissible under the law and also a weak type of evidence, no convincing evidence was available against co-accused---Consequently, the case against co-accused was not free from doubts---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

(b) Criminal trial---

----Benefit of doubt---Principle---Benefit of even a single circumstance creating a reasonable doubt would go in favour of accused.

Tariq Parvaiz v. The State 1995 SCMR 1345 rel.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Material discrepancies in the evidence---Scope---Accused were charged that he and co-accused committed murder of two brothers of the complainant by firing---Motive behind the occurrence was previous enmity---Material discrepancies and lacunas existed in the prosecution evidence---Neither in the FlR nor in evidence of material prosecution witnesses, the present accused had been nominated nor his presence had been shown---Trial Court, in view of said fact, acted erroneously in the matter with misconception and misinterpretation of law and facts and disposed of the matter purely on non-appreciation and non-application of the required norms of law and that of justice---Consequently, appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court---Remaining accused had expired by their natural death during pendency of present appeal, hence the proceedings against them were already abated.

Mian Taj Muhammad Keerio for Appellants.

Shahid Ahmed Shaikh, D.P.G. along with Shawak Rathore, D.P.G. for the State.

2021 Y L R 2171

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi, J

SULTAN LANJWANI JAT---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-40 of 2019, decided on 17th December, 2020.

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

----Ss. 302(b), 337-H(2), 114, 148 & 149---Qatl-i-amd, rash or negligent act to endanger human life or personal safety of others, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Ocular account supported by medical evidence---Accused was charged that he along with his co-accused persons committed murder of the father of the complainant due to property dispute---Oral evidence given by the eye-witnesses including the complainant supported the case of prosecution---Said witnesses specifically deposed that the accused along with other co-accused persons caused firearm injuries to the deceased---Medical evidence was supportive to the oral evidence---Medical evidence produced by the prosecution while examining the Medical Officer, who conducted the post-mortem of the deceased, deposed that deceased received eight separate firearm injuries and as per his opinion all injuries were ante-mortem---All the witnesses denied direct enmity with the accused during their cross-examination and deposed that they had enmity with co-accused and the same was also admitted by the accused in his statement under S.342, Cr.P.C, which suggested that there was no motive to falsely implicate the accused in the case---Evidence produced by the prosecution was reliable, trustworthy and confidence inspiring which was supported by the medical evidence---Appeal against conviction was dismissed, in circumstances.

Ahsan Shahzad and another v. The State and others 2019 SCMR 1165 and Javed Ishfaq v. The State 2020 SCMR 1414 ref.

Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152 and Lal Khan v. State 2006 SCMR 1846 rel.

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

----Ss. 302(b), 337-H(2), 114, 148 & 149---Qatl-i-amd, rash or negligent act to endanger human life or personal safety of others, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---General allegations--- Scope--- Accused was charged that he and co-accused persons committed murder of the father of the complainant due to property dispute---Allegedly, there were general allegations against the accused of firing upon the deceased and it had not been established beyond doubt as to by whose fire shot the deceased had been killed---Record showed that all the witnesses deposed that the accused and co-accused actively participated in the commission of offence and fired from weapon upon the deceased which hit the deceased---Evidence of witnesses was corroborated by medical evidence including the recovery of crime empties from the place of vardat---Appeal against conviction was dismissed, in circumstances.

Muhammad Riaz and another v. The State and another 2007 SCMR 1413 rel.

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

----Ss. 302(b), 337-H(2), 114, 148 & 149---Qatl-i-amd, rash or negligent act to endanger human life or personal safety of others, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Weapon of offence not recovered---Scope---Accused was charged that he and co-accused persons committed murder of the father of the complainant due to property dispute---Allegedly, crime weapon used by the accused at the time of offence was not recovered, therefore, the accused could not be connected with the alleged murder of the deceased---Said contention had no force in view of the fact that all the prosecution witnesses supported the case of prosecution by deposing that the accused along with other co-accused directly fired from the rifle which hit the deceased---Said direct evidence was further corroborated by medical evidence as the Medical Officer who examined the deceased had found eight separate firearm injuries further corroborated by the recovery of the empties of 7mm rifle from the place of vardat---Appeal against conviction was dismissed, in circumstances.

(d) Criminal trial---

----Non-recovery of weapon of offence---Scope---If charge was proved by direct, natural and confidence inspiring evidence, then non--recovery of crime weapon was not fatal to the prosecution case.

Sikander Teghani alias Muhammad Bux Teghani v. The State 2016 YLR 1098 rel.

(e) Criminal trial---

----Evidence---Minor contradictions---Scope---If the prosecution establish its case beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence supported by medical and circumstantial evidence then if there might be some minor contradictions which always were found in each and every case might be ignored.

Zakir Khan v. The State 1995 SCMR 1793 rel.

Ahsan Ahmed Qureshi for Appellant.

Habibullah G. Ghouri for the Complainant.

Muhammad Noonari, D.P.G for the State.

2021 Y L R 2190

[Sindh]

Before Abdul Maalik Gaddi and Mrs. Rashida Asad, JJ

ZABIULLAH alias

ZUBAIR and 2 others---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos. 74, 75, 76 and 77 of 2020, decided on 25th March, 2020.

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

----S. 497---Penal Code (XLV of 1860), Ss. 353, 324, 427 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23---Assault or criminal force to deter public servant from discharge of his duty, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, common intention, act of terrorism, unlicensed possession of arms---Bail, grant of--- Non-association of independent witnesses---Completion of investigation---Scope---Allegation against accused persons was that they on the relevant date and time allegedly made firing upon the police party and in retaliation, the police party also fired upon the accused persons, which continued for sometime, but no one had sustained any bullet injury during the encounter; thus, it was a case of ineffective firing---Three co-accused persons had successfully escaped from the spot---No person from the place of incident was cited as a witness---Accused persons were not previously involved in any criminal case; hence, their false implication could not be ruled out---Accused persons were not required for investigation and were admitted to post-arrest bail, in circumstances.

Abdul Ghafoor v. The State 1996 PCr.LJ 1573 ref.

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

----S. 497--- Bail--- Scope--- Mere heinousness of offence is no ground to refuse bail, if otherwise the accused becomes entitled to the concession of bail.

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

----S. 497--- Bail--- Scope--- Ultimate conviction and incarceration of a guilty person can be repaired by the wrong caused through a mistaken relief of bail granted to him, but no satisfactory reappraisal can be offered to an innocent person for his unjustified incarceration at any stage of the case, if he is acquitted in the long run.

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

----S. 497---Bail---Scope---Benefit of doubt can be given to the accused even at bail stage.

(e) Criminal trial---

----Witness---Police officials---Scope---Evidence of police officials is as good as any private witness, but when the whole case of prosecution is based upon the evidence of police officials then their evidence is required to be minutely scrutinized.

Jamroz Khan Afridi for Applicants (in Criminal Bail Applications Nos.74, 75, 76 and 77 of 2020).

Abdullah Rajput, Deputy Prosecutor General, Sindh for Respondent.

2021 Y L R 2235

[Sindh]

Before Muhammad Iqbal Kalhoro and Shamsuddin Abbasi, JJ

AIJAZ HUSSAIN JAKHRANI---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and 2 others---Respondents

C.P. No. D-6040 of 2019, decided on 19th December, 2020.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a) (v) (vi) & (b)---Constitution of Pakistan, Art. 199---Constitutional petition---Pre-arrest bail, refusal of---Mala fide---Petitioner was alleged to have misused his authority and misappropriated funds in Annual Development Program of Machinery and Maintenance Division of two Districts---Validity---In investigation huge sums of money, were found deposited in Bank accounts of petitioner over staggered time by different contractors---Relevant evidence in shape of documents was available on record, which vouch for accusations and had prima facie connected petitioner with alleged offence---No mala fide existed on the part of NAB in filing of reference against petitioner---Relief of pre-arrest bail was only meant to protect an innocent person from arrest and concomitant humiliation and disgrace in the wake of his apparent false implication in case out of mala fide and ulterior motives either on the part of complainant or police---No such material was available to entitle petitioner to such extraordinary relief---Pre-arrest bail was refused in circumstances.

2017 SCMR 2060; PLD 2017 Sindh 243; PLD 2020 SC 456; 2009 SCMR 141; 2019 PCr.LJ 1145; Syed Alamdar Hussain v. Abdul Baseer Qureshi PLD 1978 SC 121; Muhammad Nadeem Anwar v. Securities and Exchange Commission of Pakistan 2014 SCMR 1376 and Manzoor Ahmed v. The State PLD 2003 Kar. 97 ref.

Barrister Mohsin Shahwani for Petitioner.

Ubaidullah Abro, Special Prosecutor, NAB along with I.O. M. Irfan for Respondents.

2021 Y L R 2263

[Sindh (Sukkur Bench)]

Before Adnan-ul-Karim Memon and Yousuf Ali Sayeed, JJ

AZHAR ALI and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. D-189 of 2019, decided on 29th July, 2020.

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

----Ss. 384 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Extortion, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that each accused had been extorting a sum of Rs.500/- from complainant owner of a hotel, on a daily basis over the past six to seven years, and also threaten him in order to avail free meals, but had never formally reported the matter to the police---No details of the threats said to have been made by the accused to the complainant on or any previous occasion over the past six to seven years were disclosed in the FIR and even the charge, which was confined to the events of one day, also failed to set out the specifics of the threat said to have been made by the accused on that day---Evidence of complainant and a witness was also completely bereft of such details---Even at the time of hearing of the appeal, the complainant was unable to readily articulate the scope/nature of the threat allegedly made on that date or at any earlier point in time---Elements of the alleged offence were neither properly disclosed, nor proved---Prosecution had not brought any material on record to establish that the accused had a nexus with any organization or mafia involved in collecting extortion money or that the unspecified threat made by them created a sense of insecurity amongst the public in the immediate vicinity of the establishment, let alone a mass scale---Alleged action was otherwise not designed to achieve any of the objectives specified in S.6(1)(b) of the Anti-Terrorism Act, 1997---Ingredients of "terrorism" were, therefore, lacking---Appeal against conviction was allowed, in circumstances.

Ghulam Hussain and others v. The State PLD 2020 SC 61 rel.

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

----Ss. 384 & 34---Anti-Terrorism Act (XXVII of 1997 ), S. 7---Extortion, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Non-recovery of weapon from accused---Scope---Prosecution case was that each accused had been extorting a sum of Rs. 500/- from complainant, owner of a hotel, on a daily basis over the past six to seven years, and also threaten him in order to avail free meals---In the present case no weapons of any sort were recovered from the accused---Witness, during his cross-examination, had conceded that at the time of the incident, the accused were unarmed---Appeal against conviction was allowed, in circumstances.

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

----Ss. 384 & 34---Anti-Terrorism Act (XXVII of 1997 ), S. 7---Extortion, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Recovery of currency notes from the possession of accused---Reliance---Scope---Prosecution case was that each accused had been extorting a sum of Rs. 500/- from complainant, owner of a hotel, on a daily basis over the past six to seven years and also threaten him in order to avail free meals---In the present case, the currency notes said to have been recovered from the accused at the time of their arrest were not identified in the FIR or memo of arrest, personal search and recovery by reference to any marking or to their serial number---During cross-examination, the complainant conceded that he did not mention the serial numbers of currency notes of "Bhatta" amount in the FIR---Even otherwise, none of the case properties was exhibited in evidence nor were the accused confronted with the same at the time of their statements under S. 342, Cr.P.C.---Appeal against conviction was allowed, in circumstances.

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

----S. 342---Power of court to examine the accused---Scope---Piece of evidence not to put to an accused at the time of recording his statement under S. 342, Cr.P.C., could not be considered against him and was precluded from being used as evidence against him at trial.

Qaddan v. The State 2017 SCMR 148 rel.

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

----Ss. 384 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Extortion, common intention, act of terrorism---Appreciation of evidence---Withholding material evidence---Scope---Prosecution case was that each accused had been extorting a sum of Rs.500/- from complainant, owner of a hotel, on a daily basis over the past six to seven years and also threaten him in order to avail free meals---In the present case one of the Police personnel who was witness to the memo of arrest, personal search and recovery were given up as witness by the prosecution---If any party failed to produce before the court the best piece of evidence that was available with it then a presumption or adverse inference might be drawn under Art. 129(g) of Qanun-e-Shahadat, 1984, that had the said witness been produced before the court it would have been unfavourable to such party---Non-examination of said person had materially undermined the prosecution's case---Appeal against conviction was allowed, in circumstances.

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

----Ss. 384 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S. 103---Extortion, common intention, act of terrorism---Appreciation of evidence---Non association of private witnesses at the time of arrest and recovery---Scope---Prosecution case was that each accused had been extorting a sum of Rs. 500/- from complainant, owner of a hotel, on a daily basis over the past six to seven years and also threaten him in order to avail free meals---Investigating Officer had mentioned the unwillingness on the part of the members of the public to come forward as witness, however, he did not explain as to why neither the Police personnel at the scene nor the Investigating Officer subsequently made the necessary effort in that regard and did not give notice to any such person---Appeal against conviction was allowed, in circumstances.

(g) Criminal trial---

----Benefit of doubt---Principle---Even a single circumstance which served to create reasonable doubt in a prudent mind as to the guilt of the accused entitled him to its benefit, not as a matter of grace or a concession but as a matter of right.

Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

Manzoor Ahmed Soomro for Appellants.

Syed Sardar Ali Shah, D.P.G. for the State.

Complainant Danesh Kumar, in person.

2021 Y L R 2278

[Sindh]

Before Muhammad Shafi Siddiqui, J

MUHAMMAD TOBRIA---Applicant

Versus

The BOARD OF TRUSTEE through Chairman, and 6 others---Respondents

Revision Applications Nos. 55 to 67 of 2019, decided on 13th April, 2021.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O. VII, R. 11---Karachi Port Trust Act (VI of 1886), S. 87---Transfer of Property Act (IV of 1882), Ss. 105 & 107---Easements Act (V of 1882), Ss. 52 & 54---Suit for declaration and permanent injunction---Limitation of suits---Rejection of plaint---Lease---Licence---Leases how made---Grant of licence may be express or implied---Scope---Applicants assailed the rejection of their plaints in suits for declaration and permanent injunction in respect of their respective properties---Applicants had filed an application for extension of "lease" before the Karachi Port Trust and was declined, followed by issuance of notice of eviction, which led to filing of suits---Trial Court rejected the plaints on the ground that suits were barred under S. 87 of Karachi Port Trust Act, 1886 and that no action could have been initiated against any official of the Karachi Port Trust in respect of anything done or purported to have been done in pursuance of the Act without giving to such person one month's previous notice in writing of the intended suit and of the cause thereof, nor after six months from the accrual of the cause of such suits---Validity---Licences on which respondents were relying had expired somewhere in 2013---Karachi Port Trust, after expiry of alleged licenses, had starting receiving the amount as "lease money"---Margin line between a lease and license was very thin and irrespective of as to what was defined in the documents itself, it was the intention of the parties which could ultimately determine relationship and status---Since rental receipts were issued for a lease period, therefore, notice under S.87 of the Karachi Port Trust Act for eviction could not be read to have been issued in pursuance of the Act as a lessee could not be evicted without due process of law---Such action was not deemed to have been taken or purported to have been taken under the said Act---Trial Court should have commenced the trial and disposed of the lis in accordance with law---Cases were remanded to the Trial Court for decision on merits.

Abdullah Bhai v. Ahmad Din PLD 1964 SC 106; Delta International Ltd. v. Shyam Sundar Ganeriwala 1999(2) SCR 541; Pervaiz Hussain v. Arabian Sea Enterprises 2007 SCMR 1005 and M.N. Clubwala v. Fida Hussain Saheb AIR 1965 SC 610 rel.

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

----S. 105---Easements Act (V of 1882), S. 52--- Lease and licence---Distinction between---Scope---Lease under Transfer of Property Act, 1882 is defined as transfer of an interest in the immovable property---Ownership of immovable property consists of a number of rights and the owner of such property when he creates a lease, transfers to the lessee a part or some parts of rights of ownership which may include right of enjoyment of the property for a period for consideration---During the continuance of lease the right of enjoyment of the property belongs to the tenant/lessee and not to the landlord/lessor---Right of ownership as well as right of which it is composed are rights in rem i.e. it may pass on under the law and not in personem and by the lease a right in rem is transferred to the lessee whereas in case of a licence, it is only seen as a permission to do something which in the absence of such permission would be unlawful---It does not confer any right in physical property.

Malik Khushhal Khan for Applicants.

Hakim Ali for respondents (in R.As. Nos.55 to 61 of 2019).

2021 Y L R 2318

[Sindh]

Before Adnan Iqbal Chaudhry, J

MUHAMMAD KASHIF and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 486 of 2018, decided on 12th February, 2020.

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

----Art. 22---Test identification parade---Scope---Though the identification made at the test identification parade might not be substantive evidence, however, it could be used to corroborate the statement of the witness made in court at the trial.

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

----Ss. 392, 397, 427 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Robbery, robbery or dacoity with attempt to cause death or grievous hurt, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence---Delay in conducting the test identification parade---Scope---Prosecution case was that the accused while armed with weapons broke into the house of complainant, held them at gunpoint, searched the house and robbed them of 35 tola gold jewellery, Rs.5,00,000/- cash, Saudi Riyals 15,000/- and five cellphones---In the present case, the witnesses were the victims of the robbery who had identified the accused as two of the robbers first at the test identification parade before the Magistrate, and then in court at the trial---Robbery took place on 11.02.2016---Accused was arrested on 30.4.2016---Investigating Officer deposed that since the following day (01.05.2016) was a holiday, the application for conducting identification parade of the accused was granted by the Magistrate on the next day, thus, the same was held on 03.05.2016, i.e. after three days of arrest---Co-accused was produced at an identification parade on the second day of his arrest---No delay in conducting the test identification parade---Appeal against conviction was dismissed accordingly.

Mian Sohail Ahmed v. The State 2019 SCMR 956; Kanwar Anwaar Ali's case PLD 2019 SC 488; Lal Pasand v. The State PLD 1981 SC 142 and Zakir Khan v. State 1995 SCMR 1793 ref.

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

----Ss. 392, 397, 427 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Robbery, robbery or dacoity with attempt to cause death or grievous hurt, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence---Test identification parade---Scope---Prosecution case was that the accused while armed with weapons broke into the house of complainant, held them at gunpoint, searched the house and robbed them of 35 tola gold jewellery, Rs.5,00,000/- cash, Saudi Riyals 15,000/- and five cellphones---In the present case, while identifying the accused at the test identification parade, each witness had also described the role of each accused at the robbery---Other precautions were also taken by the Magistrate at the test identification parade, the identification memos recorded that each accused was lined-up with ten dummies---Each accused had been produced in court by the police with his face covered---Cover was removed before asking him to mix with the dummies and stand in the row at a place of his choice---Police was sent out of the court-room and that the witness was made to sit in the Judge's Chamber until called into the court-room for identification---Magistrate who had certified the test identification parade was also examined and he affirmed the contents of the identification memos---Magistrate had also deposed that the dummies were of a similar description as the suspect and that the dummies were shuffled for each identification parade---Defence objected that the dummies used in the identification parade of both the accused were the same, such was not so as the list of dummies annexed to the identification memos showed that a different set of dummies was used for the identification parade of each accused---Defence further objected that the faces of the accused had been revealed to the witnesses prior to the identification parade and thus the identification was of no value---When accused was confronted under S.342, Cr.P.C. with his identification parade, he had stated differently, viz., that the witnesses had been called earlier to the police station but could not identify him over there---Statement of co-accused under S.342, Cr.P.C., was that the witnesses had seen him outside the court-room prior to the identification parade, that too appeared to be an after-thought no evidence was available to substantiate said allegation---No such objection had ever been raised by co-accused before the Magistrate at the time of the identification parade---Investigating Officer and the witnesses were consistent in denying the revealing/ seeing of the faces of accused outside the court-room prior to the test identification parade---Circumstances established that the prosecution had succeeded in establishing the guilt of the accused---Appeal was dismissed accordingly.

(d) Criminal trial---

----Appreciation of evidence---Principle---Rule of appreciation of evidence is that evidence should be considered as a whole; corroborative evidence and ocular testimony should be read together; and a minor inconsistency in one piece of evidence is not sufficient to reject the whole evidence.

Muhammad Hanif v. The State PLD 1993 SC 895 rel.

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

----Ss. 392, 397, 427 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Robbery, robbery or dacoity with attempt to cause death or grievous hurt, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence---Prosecution case was that the accused while armed with weapons broke into the house of complainant, held them at gunpoint, searched the house and robbed them of 35 tola gold jewellery, Rs.5,00,000/- cash, Saudi Riyals 15,000/- and five cellphones---Ocular account of the incident had been furnished by four witnesses comprising complainant and his sons---Ocular testimony of all four eye-witnesses, as regards the manner in which the robbery panned-out did not contain any material inconsistency---Evidence was that the robbers first came to the second floor; rounded-up a witness, his wife and children and took them at gun-point to the first floor; there they rounded-up the complainant, two witnesses, their sister and children and detained all of them at gun-point in one room to commit the robbery--- Prosecution witness had deposed that the stay of the robbers was between 20 to 30 minutes---Present was not a case of a fleeting glimpse of the accused at a distance but a case where the accused were in close eye-range of the witnesses for a considerable period of time---None of the eye-witnesses had erred at the test identification parade, the duration of 2½ months and six months between the incident and identification parade of the accused and co-accused respectively, did not diminish the reliability of that evidence, further, the accused were unknown to the eye-witnesses---Nothing was available to indicate that any of the witnesses had any motive to implicate the accused falsely---Accused had also not pleaded enmity with the witnesses---No reason existed to doubt the ocular evidence of the eye-witnesses---Circumstances established that the prosecution had succeeded in establishing the guilt of the accused---Appeal was dismissed accordingly.

Syed Lal Hussain Shah for Appellants.

Siraj Ahmed Khan Chandio, Additional Prosecutor General, Sindh for the State.

Muhammad Javed K.K. for the Complainant.

2021 Y L R 2360

[Sindh (Larkana Bench)]

Before Muhammad Junaid Ghaffar and Muhammad Saleem Jessar, JJ

DILDAR alias

DARRO UMRANI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-75 of 2012, decided on 19th September, 2017.

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

----Ss. 302, 324, 387, 504, 114, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Pakistan Arms Act (XX of 1965), S.13(e)---Qatl-i-amd, attempt to commit qatl-i-amd, putting person in fear of death or of grievous hurt in order to commit extortion, intentional insult with intent to provoke breach of peace, abetment, rioting armed with deadly weapon, unlawful assembly, act of terrorism, possessing unlicensed arms---Appreciation of evidence---Delay of about more than twenty hours in lodging the FIR---Effect---Prosecution case was that accused persons demanded extortion money from complainant party, on their refusal, accused made firing upon them, due to which nephew of complainant died and his cousin sustained fire arm injuries---Record showed that occurrence in the case had taken place on 02.9.2011 at 05.30 p.m., while the matter was reported to the police by uncle of deceased at police station which was at the distance of 03 furlongs on 03.9.2011 at 3.00 p.m.---Name of accused, the role he played, weapon used for the commission of the offence, manner of the occurrence and the names of eye-witnesses were mentioned in the FIR---Therefore, said delay was not fatal to the prosecution case---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302, 324, 387, 504, 114, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Pakistan Arms Act (XX of 1965), S.13(e)---Qatl-i-amd, attempt to commit qatl-i-amd, putting person in fear of death or of grievous hurt in order to commit extortion, intentional insult with intent to provoke breach of peace, abetment, rioting armed with deadly weapon, unlawful assembly, act of terrorism, possessing unlicensed arms---Appreciation of evidence---Ocular account supported by medical evidence---Scope---Prosecution case was that accused persons demanded extortion money from complainant party, on their refusal, accused made firing upon them, due to which nephew of complainant died and his cousin sustained fire arm injuries---Complainant was uncle and injured eye-witness was cousin of the deceased, while another eye-witness was the real brother of deceased---Record showed that the deceased, injured and eye-witness used to run the scrap shop jointly---Complainant and both eye-witnesses had highlighted the details of the incident---Defence had not offered serious objection to the scrap shop of the deceased being the place of occurrence---No serious exception could be taken to the claim of all the three eye-witnesses that they were present there at the time of incident---Eye-witnesses were subjected to an exhaustive and lengthy cross-examination but in spite of various searching questions nothing advantageous to the accused could be extracted from them---No enmity, whatsoever, was alleged against the complainant and eye-witnesses and besides that being uncle, real brother and cousin, the question of substitution of real culprit with that of accused did not arise, which otherwise was a rare phenomenon---Ocular account was fully corroborated by medical evidence---Medical Officer, who conducted post-mortem of the deceased, stated in his deposition that he found two firearm injuries sustained by the deceased at the hands of accused---No conflict was found in between ocular and medical evidence which rather was corroborative on date, time of the incident and seat of the injury---Impugned judgement was neither perverse nor arbitrary nor it suffered from any illegality or irregularity---Appeal against conviction was dismissed, in circumstances.

(c) Criminal trial---

----Witness---Related witness---Evidence of related witness---Reliance---Scope---Mere relationship did not hold a witness interested to a party.

Nizamuddin v. The State 2010 SCMR 1752 rel.

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

----Ss. 302, 324, 387, 504, 114, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Pakistan Arms Act (XX of 1965), S.13(e)---Qatl-i-amd, attempt to commit qatl-i-amd, putting person in fear of death or of grievous hurt in order to commit extortion, intentional insult with intent to provoke breach of peace, abetment, rioting armed with deadly weapon, unlawful assembly, act of terrorism, possessing unlicensed arms---Appreciation of evidence---Recovery of crime empties and weapon---Scope---Prosecution case was that accused persons demanded extortion money from complainant party, on their refusal, accused made firing upon them, due to which nephew of complainant died and his cousin sustained fire arm injuries---Admittedly, crime empties were recovered on the same day of incident and sealed then and there, whereas the crime weapon i.e. 30 bore pistol was recovered on the pointation of accused, which too was sealed---Both articles were thereafter sent to the Forensic Science Laboratory for examination---Report of Expert clearly indicated that two 30-bore empties recovered from the place of incident were fired from the 30-bore pistol recovered on the pointation of accused---Recovery had fully supported the prosecution case---Appeal against conviction was dismissed, in circumstances.

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

----S. 302--- Qatl-i-amd--- Motive---Scope---Failure of the prosecution to prove the motive would not be fatal to the prosecution case.

Syed Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427 rel.

Muhammad Aslam H. Jatoi for Appellant.

Khadim Hussain Khooharo, Addl. Prosecutor General for Respondent.

None present for the Complainant.

2021 Y L R 2401

[Sindh]

Before Nadeem Akhtar, J

Mst. HASEENA and another---Applicants

Versus

Mst. BASRAN and 6 others---Respondents

Criminal Miscellaneous Application No. 186 of 2014, decided on 14th July, 2014.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus---Territorial jurisdiction--- Scope--- Applicant and alleged detainee assailed order passed by Sessions Judge whereby he had assumed territorial jurisdiction to entertain the respondent's application under S.491, Cr.P.C., and had accordingly issued rule nisi for production of the alleged detainee---Contention of applicants was that they were residents of district 'K' hence the Sessions Judge at district 'T' had no jurisdiction to entertain the application---Validity---Alleged detainee was married with the applicant; their nikah was registered and in their nikahnama both the applicant and alleged detainee were shown as the permanent residents of district 'T', but district 'K' was shown as their place of residence at the time of nikah---Applicant and alleged detainee had shifted to district 'K' and after getting married had started living as a couple---Sessions Judge had failed to appreciate that more than sufficient evidence was available on record to substantiate that the applicant and detainee were not residing within its territorial jurisdiction, but were residing at district 'K'---Assumption of jurisdiction in the matter and taking cognizance therein by the court was void ab initio---Proceedings before the Sessions Judge were quashed, in circumstances.

Khalid Hussain Rajpar for Applicants.

Respondent No.1 in person.

Shehzado Saleem, Additional Prosecutor General Respondents Nos. 2 to 7.

2021 Y L R 2412

[Sindh (Hyderabad Bench)]

Before Mohammad Karim Khan Agha and Rasheed Ahmed Soomro, JJ

PEERAL MAGSI and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. D-365 and D-376 of 2011 and Confirmation Case No.23 of 2011, decided on 24th June, 2020.

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

----Ss. 302, 324, 337-A(i), 337-A(ii), 337-F(i), 337-F(v), 504, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, shajjah-i-mudihah, ghayr-jaifah-damiyah, ghayr-jaifah, intentional insult with intent to provoke breach of the peace, rioting, rioting armed with deadly weapon unlawful assembly---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused party while armed with deadly weapon, assaulted on complainant party, due to which one person of complainant party died while two were injured---Motive behind the occurrence was a dispute over a tubewell between the accused and deceased---Evidence on record showed that all eye-witnesses were present at the time of the incident and that both the accused and their acquitted co-accused were also present at the time of the incident---Question of identification did not arise as it was a day time incident, all the accused and witnesses knew each other either being related by blood or caste and lived close by and seen each other regularly being agriculturalists who were attending their nearby land---Allegedly, one person from the complainant side during the altercation mistakenly shot and killed the deceased whilst shooting at accused---On the day of the incident at 11.30 a.m. the accused registered a FIR under Ss. 324, 337-A(ii), 337-F(i), 504, 147, 148 & 149, P.P.C. against the complainant party---Later, the accused lodged a complaint under the same sections mentioned in his FIR against the same persons who he mentioned in the FIR had attacked him and his party in more detail than the original FIR which he claimed had deliberately omitted some parts of his narration---Complaint lodged by accused culminated in a full dressed trial against the complainant and the other and they were convicted and sentenced by the court---In the present case the eye-witnesses in their evidence had maintained throughout that they were unarmed and that they were the victims of the attack made by the accused---However, the convictions and sentences given to complainant party which remained in the field clearly showed that the complainant and his side were armed at the time of the incident and might be well have been the instigators and as such they did not appear to be telling the truth in their evidence---Furthermore, if they were unarmed how was it possible for the accused to receive the injuries which they did about which the accused gave evidence and was corroborated by Medical Officer who appeared as defence witness---Said witness stated in his evidence about the nature of the accused injuries and that such injuries were not self inflicted which again indicated that the eye-witnesses had not been truthful in their evidence---FIR of accused was lodged with promptitude so he would not have had sufficient time to cook up a false case and he went to the hospital via a police letter after he had reported the incident to the police---Prosecution witnesses stated in their evidence that no katcha path ran close to the deceased house however it had come in evidence of both the accused, Investigating Officer and tapedar that such a path existed and that was where the altercation between the two sides occurred---Once again it appeared that the prosecution witnesses had not been truthful in their evidence---Appeal against conviction was allowed, in circumstances.

Muhammad Nadeem alias Banka v. The State 2011 SCMR 1517; Shahbaz v. The State 2016 SCMR 1763; Muhammad Afzal v. The State 2017 SCMR 1645; Imtiaz alias Taj v. The State and others 2018 SCMR 344; Muhammad Asif v. The State 2017 SCMR 486; Hashim Qasim and another v. The State and Jehangir Elahi v. Shoaib Ahmed and others 2017 SCMR 986; Majeed and another v. The State 1999 SCMR 2317; Mst. Salma Shahida v. The State 2008 SCMR 787; M. Younus Habib v. The State PLD 2006 SC 153; Sikandar v. The State and another 2006 SCMR 1786; Nasir Shah v. The State 2006 SCMR 1796; Lal Khan v. The State 2006 SCMR 1846; Nawab v. The State 2006 SCMR 456; Muhammad Tashfeen and others v. The State and others 2006 SCMR 577; Maqsood Ahmed v. The State 2006 SCMR 672; Haq Nawaz and others v. Haji Ghulam Farid and others 2011 SCMR 782; Tanveer alias Rabail and another v. The State 2012 YLR 2026; Muhammad Iqbal Shah and another v. The State 2005 MLD 85; Yasir and 2 others v. The State 2018 MLD 1014; Qadir Bakhsh and others v. The State through Shaukat and others 2013 YLR 1418; Elahi Bakhsh and others v. The State and others 2005 SCMR 810 and Mubarak v. The State 1982 SCMR 531 ref.

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

----Ss. 302, 324, 337-A(i), 337-A(ii), 337-F(i), 337-F(v), 504, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, shajjah-i-mudihah, ghayr-jaifah-damiyah, ghayr-jaifah, intentional insult with intent to provoke breach of the peace, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Pistol and hatchet were recovered on the pointation of accused persons---Reliance---Scope---Prosecution case was that the accused party while armed with deadly weapons, assaulted on complainant party, due to which one person of complainant party died while two were injured---Allegedly a pistol was recovered on the pointation of accused which he denied but in any event the recovery of the pistol was inconsequential in the absence of Forensic Science Laboratory Report---If the accused was armed it did not appeal to logic, reason or commonsense that he could have been so badly injured by hatchet which implied close proximity to him by the person who attacked him when he had a firearm he would have shot that person before they could strike him---Hatchet was recovered from the co-accused but same was inconsequential as there was no blood on it and probably in a farming community there were many hatchets lying around and there was no evidence that this particular hatchet either belonged to co-accused or was the hatchet which was used to hit the deceased with---Recovery was doubtful as allegedly the hatchet was recovered from co-accused at 11.15 am and on the same day co-accused was admitted to hospital at 10.40 am which was before the hatchet was allegedly recovered from him---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 324, 337-A(i), 337-A(ii), 337-F(i), 337-F(v), 504, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, shajjah-i-mudihah, ghayr-jaifah-damiyah, ghayr-jaifah, intentional insult with intent to provoke breach of the peace, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence--- Interested and related witnesses---Scope---Prosecution case was that the accused party while armed with deadly weapon, assaulted on complainant party, due to which one person of complainant party died while two were injured---Record showed that all the eye-witnesses were closely related to each other, had enmity with accused over his winning the court case which enabled him to use the tubewell over which admittedly the parties were in dispute---Complainant and eye-witnesses had reason to involve the accused persons in a false case so that they could take over the disputed tubewell---Evidence of such witnesses must be treated with great caution as they were interested witnesses and their evidence required independent corroboration which appeared to be lacking in the present case---Circumstances suggested that eye-witnesses were not found to be reliable, confidence inspiring or truthful witnesses---Appeal against conviction was allowed, in circumstances.

Ijaz Ahmad v. The State 2009 SCMR 99; Notice to Police Constable Khizer's case PLD 2019 SC 527 and Sabir Ali v. State 2011 SCMR 629 rel.

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

----Ss. 302, 324, 337-A(i), 337-A(ii), 337-F(i), 337-F(v), 504, 147, 148 & 149---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, shajjah-i-mudihah, ghayr-jaifah-damiyah, ghayr-jaifah, intentional insult with intent to provoke breach of the peace, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Specific questions about the incident were not put to accused---Effect---Prosecution case was that the accused party while armed with deadly weapon assaulted on complainant party, due to which one person of complainant party died while two were injured---Record showed that no specific questions were put to accused and co-accused about firing on the deceased and attack by co-accused with a hatchet and thereby injured ear of deceased---Such questions having not been put to the accused persons, such evidence could not be used to convict either of them---Two other co-accused having a similar role of allegedly giving hatchet blows to other members of the complainants' party had been acquitted and thus, co-accused was entitled to the same treatment---Appeal against conviction was allowed, in circumstances.

Zafar v. State 2018 SCMR 326 rel.

(e) Criminal trial---

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

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Irfan Ahmed Qureshi for Appellant (in Criminal Appeal No. D-365 of 2011 along with Confirmation Case No. 23 of 2011).

Noorul Haq Qureshi (appointed on State expenses vide order dated 16.06.2020) for Appellant (present on bail) (in Criminal Appeal No.376 of 2011).

Miss Safa Hisbani, A.P.G., Sindh for the State.

Muhammad Hashim Leghari for the Complainant.

2021 Y L R 2427

[Sindh]

Before Aftab Ahmad Gorar, J

ABDUL QASEEM---Applicant

Versus

1ST ADDITIONAL DISTRICT AND SESSIONS JUDGE (CENTRAL), KARACHI and 2 others---Respondents

Criminal Revision Application No. 6 of 2020, decided on 15th January, 2020.

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

----S. 540---Power to summon material witness or examine person present---Scope---Petitioner assailed order passed by trial court whereby an application under S.540, Cr.P.C. filed by accused for re-calling of the witnesses for re-examination was allowed---Circumstances of the case revealed that by filing the application under S.540, Cr.P.C., the accused intended to fill up lacunae and delay the trial as witnesses had already been examined--- Re-examination of witnesses could be ordered to rectify an obvious mistake or omission for arriving at a just decision in the matter---Impugned order did not show existence of such circumstances to justify further cross-examination of the witnesses---Impugned order was set aside and the revision application was allowed, in circumstance.

Javed v. The State 2018 MLD 1533; Dildar v. The State 2016 YLR 546; Irfan Qadri v. Anti-Terrorism Court No. II, Karachi and another PLD 2014 Sindh 364; Muhammad Asif Miraj v. The State and 3 others PLD 2015 Lah. 26; Muhammad Awais v. The State and others PLD 2016 Lah. 533 and Zaheer Abbas v. The State 2008 YLR 1225 ref.

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

----S. 540---Power to summon material witness or examine person present---Scope---Section 540, Cr.P.C. transpires that where an evidence is essential for just decision of the case, it is obligatory upon Court to allow its production and examination---Such power can only be exercised when the Court deems necessary to go at the truth of the matter, so as to come to a proper conclusion and not to allow the parties to fill the lacunae.

Abdul Sattar v. The State 1986 PCr.LJ 1536 and Mst. Safdar Jan v. The State and another 1997 PCr.LJ 1553 ref.

Aamir Mansoob Qureshi for Applicant.

2021 Y L R 23

[Lahore]

Before Malik Shahzad Ahmad Khan and Ch. Mushtaq Ahmad, JJ

RIAZ AHMAD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 11595 of 2019, decided on 12th October, 2020.

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

----Ss. 9(c) & 36---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6---Possession of narcotics---Reports of Government Analysts---Report of test---Non-mentioning of full protocols---Effect---Accused was alleged to have been found in possession of 1110 grams of opium---Report of Forensic Laboratory did not contain the details of the protocols and the test applied at the time of analysis of sample of narcotic---Report failing to describe the details of the full protocols and the tests applied was inconclusive, unreliable, suspicious and untrustworthy and did not meet the evidentiary presumption attached to report of the Government Analyst under S.36(2) of Control of Narcotic Substances Act, 1997---Single circumstance creating reasonable doubt was sufficient to cast doubt about the veracity of prosecution case and the benefit of doubt had to be extended in favour of the accused not as a matter of grace and concession but as a matter of right---Appeal against conviction was allowed, in circumstances.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 and Khair-ul-Bashar v. The State 2019 SCMR 930 rel.

Tariq Pervez v. The State 1995 SCMR 1345; Akhtar Ali and others v. The State 2008 SCMR 6 and Muhammad Zaman v. The State and others 2014 SCMR 749 ref.

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

----S. 9---Possession of narcotics---Scope---Provisions of Control of Narcotic Substances Act, 1997, provide stringent punishments, therefore, their proof has to be construed strictly and the benefit of any doubt in the prosecution case must be extended to the accused.

Muhammad Hashim v. The State PLD 2004 SC 856 ref.

(c) Criminal trial---

----Sentence---Standard of proof---Scope---Harder the sentence, stricter the standard of proof.

Ameer Zeb v. The State PLD 2012 SC 380 ref.

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

----R.6---Report of result of test---Scope---Rule 6 of the Control of Narcotic Substances (Government Analyst) Rules, 2001, makes it imperative on an analyst to mention result of material analyzed with full protocols applied thereon along with other details in the report issued for test/analysis by the laboratory.

Saleem Ullah Khan Balouch for Appellant.

Waqas Anwar, Deputy Prosecutor General for the State.

2021 Y L R 52

[Lahore]

Before Aalia Neelum, J

JAVED IQBAL KHAN and 7 others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 1145 and Criminal Revision No. 738 of 2013, decided on 20th February, 2020.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Chance witnesses--- Non-availability of justification for presence of witnesses at the time of preparing inquest report---Scope---Accused was charged that he and co-accused persons while armed with deadly weapons made firing upon the complainant party, brother of complainant was hit and died---Motive behind the occurrence was dispute over passage and water course---Record showed that the incident took place at 3.45 p.m. and the incident was reported to the police at 5.30 p.m. on the same day---Prosecution had claimed that the inquest report was prepared at 5.30 p.m. on the day of incident---Investigating Officer had mentioned the names of the persons who identified the dead body of deceased---Inquest report was not signed by any of the eye-witnesses or the complainant---Complainant and a witness had deposed that they were present at the police station when the inquest report of the dead body was prepared---If the complainant and witness were present at the police station at the time of preparation of the inquest report and actually the complainant had reported the incident at 5.30 p.m. and a witness met with the Investigating Officer, there was no reason why the details which were found missing from the inquest report should not have been there---Said fact outrightly suggested that the complainant was not present at the time when the inquest report was prepared---Said circumstances went to suggest that the FIR was ante time which got support from the testimony of Medical Officer, who conducted the post-mortem examination of the dead body of the deceased, as copy of FIR was not sent to the Medical Officer with other documents---Prosecution had not given any explanation as to why copy of the FIR was not sent to the Medical Officer along with other documents at the time of the post-mortem examination---Said circumstance revealed that till the time of the post-mortem examination, FIR was not in existence--- Circumstances established that the prosecution had not been able to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Ocular and medical evidence---Contradictions---Effect---Accused was charged that he and co-accused persons while armed with deadly weapons made firing upon the complainant party, brother of complainant was hit and died---Prosecution version was that the accused made fire shot which hit on the left side of the chest of the person of deceased---Site plan revealed that the distance between accused and deceased was eighty feet---Medical Officer deposed in his evidence that one metallic foreign body was recovered from left chest cavity, so from the careful scrutiny of the medical evidence, it was spelled out that one metallic foreign body was recovered, which showed that fire arm projectile was fired from near contact range on the body of the deceased---Said aspect further contradicted the ocular account creating serious dents on the prosecution version, going to its roots---Circumstances established that the prosecution had not been able to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Tufail v. The State NLR 2002 Criminal 636 rel.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Motive was not proved---Scope---Accused was charged that he and co-accused persons while armed with deadly weapons made firing upon the complainant party, deceased was hit and died---Record showed that motive set up by the prosecution in the FIR and private complaint was that parties were having dispute over water Khal and passage---Complainant deposed during the cross-examination that no application was submitted to the relevant authorities regarding dispute over water course---No application was submitted to the Sub-Division Collector or District Collector regarding the passage---Witness had also took the same stance as alleged by the complainant---Investigating Officer deposed during cross-examination that complainant party did not produce any document showing that they had filed any suit or application in the Revenue Department or Irrigation Department to prove motive behind the occurrence---Complainant had admitted that land of the accused party as well as their land was irrigated through same water khal---Admittedly, on the day of occurrence, complainant party had no turn of water according to warrabandi---Prosecution, in circumstances, remained unable to connect the accused with the crime and even the prosecution case in that regard was vague and could hardly inspire confidence---Motive, as alleged, was an afterthought and had not been attributed to the accused, which as alleged could not be considered against the accused, in circumstances--- Circumstances established that the prosecution had not been able to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 rel.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence from accused---Reliance---Scope---Accused was charged that he and co-accused persons while armed with deadly weapons made firing upon the complainant party, deceased was hit and died---Weapons recovered from the accused were of no consequence as same were not sent for forensic examination to the Forensic Science Agency---Appeal against conviction was allowed, in circumstances. [p. 63] I

(e) Criminal trial---

----Appreciation of evidence---Principle---If evidence of the prosecution is disbelieved qua major portion of the accused persons, it could not be believed qua the other in absence of strong corroboration.

Akhtar Ali and others v. State 2008 SCMR 6; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758 and Iftikhar Hussain and others v. The State 2004 SCMR 1185 rel.

Ch. Mujtaba Hassan Tatla, Naseem Ullah Khan Niazi, Muhammad Amir Masood Khan and Aftab Ahmad Toor for Appellants Nos. 2 to 8.

Ms. Noshe Malik, Deputy Prosecutor General for the State.

Zafar Iqbal Malik for the Complainant.

2021 Y L R 95

[Lahore]

Before Shehram Sarwar Ch. and Muhammad Waheed Khan, JJ

MUHAMMAD IMRAN and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 92-J and Murder Reference No. 113 of 2017, heard on 3rd March, 2020.

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

----Ss. 302(b) & 394---Qatl-i-amd, robbery---Appreciation of evidence---Benefit of doubt---Delay of about five hours and fifteen minutes in lodging the FIR---Effect---Accused were charged for committing murder of nephew of the complainant during robbery---Matter was reported to the police on the same night at with a delay of five hours and fifteen minutes---Distance between police station and the place of occurrence was three kilometres---No plausible or convincing reason had been furnished for said delay in reporting the matter to the police---Said fact casted serious doubt about the veracity of prosecution story.

Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127 rel.

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

----Ss. 302(b) & 394---Qatl-i-amd, robbery---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of nephew of the complainant during robbery---Ocular account of the incident had been furnished by complainant and widow of deceased---Presence of both the said witnesses on the spot at the time of incident was doubtful in nature because in the FIR it was the case of complainant that two unknown accused persons intercepted deceased and his wife and upon resistance of deceased one accused person made a fire which landed on his abdomen---However, while appearing before the Trial Court, both the witnesses of ocular account improved the story of FIR by stating that three unknown accused persons intercepted deceased and his wife---Inordinate delay in the FIR also casted doubt about their presence on the spot at the time of incident---Accused were not nominated in the FIR either by name or description---Nothing was mentioned in the FIR or before the Trial Court as to whose fire hit the deceased---Occurrence allegedly took place at night time and no source of light was mentioned in the FIR---Allegedly, deceased and his wife were going on motorcycle when they were intercepted by the accused persons but the said motorcycle was not taken into possession by the Investigating Officer during the course of investigation---Evidence of wajtakar furnished by a witness was of no avail to the prosecution because in the statement of said witness, there was no mention that the accused persons were in perplexed condition when they crossed him on motorcycle---Identification parade conducted in the case carried no value in the eye of law because in the FIR descriptions/features such as height, complexion and physique of the accused were not given---Circumstances established that the prosecution remained failed to discharge its responsibility of proving the case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Art. 22---Identification parade---Scope---Identification parade was of no value when description/feature of the accused was not given in the contents of the FIR.

Sabir Ali alias Fauji v. The State 2011 SCMR 563 rel.

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

----Ss. 302(b) & 394---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, robbery---Appreciation of evidence---Benefit of doubt---Identification parade---Joint identification parade---Effect---Accused were charged for committing murder of the deceased during robbery---Record showed that the identification parade of accused was held wherein all the three accused had been made to sit jointly along with thirty dummies---Holding of a joint identification parade of multiple accused persons in one go was deprecated.

Gulfam and another v. The State 2017 SCMR 1189 rel.

(e) Criminal trial---

----Medical evidence---Scope---Medical evidence might confirm the ocular account with regard to the receipt of injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death but it would not tell the name of the assailants.

Ata Muhammad and another v. The State 1995 SCMR 599 rel.

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

----Ss. 302(b) & 394---Qatl-i-amd, robbery---Appreciation of evidence---Benefit of doubt---Recovery of pistol at the instance of accused---Reliance---Scope---Accused were charged for committing murder of the deceased during robbery---Record showed that .30 bore pistol was recovered at the instance of accused, which was immaterial because as per statement of witness accused was joined into investigation after more than twenty days with the permission of Area Magistrate whereas the crime empty was received in the office of Forensic Science Agency after the arrest of the accused---Such recovery was of inconsequential, in circumstances.

(g) Criminal trial---

----Recovery of crime empty---Evidentiary value of report of Forensic Science Laboratory---If the crime empty was sent to the Forensic Science Laboratory after the arrest of the accused or together with the crime weapon, the positive report of the said Laboratory lost its evidentiary value.

Jehangir v. Nazar Farid and another 2002 SCMR 1986; Israr Ali v. The State 2007 SCMR 525 and Ali Sher and others v. The State 2008 SCMR 707 rel.

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

----Ss. 302(b) & 394---Qatl-i-amd, robbery---Appreciation of evidence---Benefit of doubt---Recovery of incriminating material from the possession of accused---Reliance---Scope---Accused were charged for committing murder of the deceased during robbery---In the present case, the alleged recovery of currency notes at the instance of accused did not advance the case of prosecution because such like currency notes were available in wide circulation---No denomination of the said currency notes had been mentioned in the FIR---Similarly, alleged recoveries of mobile phone and gold ornaments at the instance of accused were of no avail to the prosecution because no receipt was produced by the complainant qua the above said gold ornaments and mobile phone showing that the same belonged to the complainant party---Mobile phone was easily available in the market---Prosecution remained failed to discharge its responsibility of proving the case against the accused---Appeal against conviction was allowed, in circumstances.

(i) Criminal trial---

----Benefit of doubt---Principle---If there was a single circumstance which created doubt regarding the prosecution case, the same would be sufficient to give benefit of doubt to the accused.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Ch. Amin Rehmat and Kamran Javed Malik for Appellants.

Tariq Javed, Additional Prosecutor General for the State.

Fahid Rafiq Verya for the Complainant.

2021 Y L R 108

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

MUHAMMAD NAEEM---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No. 12295 of 2018, decided on 9th October, 2019.

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

----S. 5, Sched.---Suit for recovery of dower---Failure to specifically cross-examine---Effect---Dispute between the parties related to gold ornaments given to the wife/respondent in terms of Column No. 17 of the Nikahnama, which was an admitted fact between the parties---Claim of the wife/respondent was that after one month of giving gold ornaments to her, same was forcibly taken away by the husband/petitioner whereas his claim was that while leaving his house, respondent/ wife took gold ornaments with her---Validity---Respondent/wife though, had been confronted with her statement but she had denied the same---No further question was put to wife relating to her statement therefore, her assertion in examination-in-chief that articles were snatched away by the petitioner remained un-rebutted and would be presumed to be correct, as she was not specifically cross-examined---Petitioner could not prove through any cogent evidence that gold ornaments were still with the respondent/ wife---Constitutional petition was dismissed, in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Findings of fact---Scope---Findings of fact recorded by the appellate court could not be set aside merely on the ground that the same were at variance with the judgment of the Trial Court, unless any misreading and non-reading of relevant record, illegality or jurisdictional defect was pointed out.

Abdul Rehman Tariq Khand for Petitioner.

2021 Y L R 125

[Lahore]

Before Syed Shahbaz Ali Rizvi and Asjad Javaid Ghural, JJ

SAWAN MASI Halias BODI---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 727 of 2014 and Capital Sentence Reference No. 7-T of 2017, decided on 5th October, 2020.

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

----S. 295-C---Use of derogatory remarks in respect of the Holy Prophet (PBUH)---Appreciation of evidence---Unexplained delay in registration of FIR---Remarks not mentioned in complaint---Benefit of doubt---Accused was Christian by faith and occurrence took place after Fajar prayers (before dawn)---Allegation against accused was that he perpetrated offence of blasphemy in presence of five Muslim witnesses when he was not armed---Complainant also claimed that many other people from locality also gathered there and they informed them about the words used by accused---Accused was convicted and sentenced to death by Trial Court---Validity---Matter was not reported by complainant or other witnesses till 2:50 pm i.e. after Jummah prayers---Written application drafted next day bearing thumb impression of complainant and read over to him did not carry derogatory remarks allegedly uttered by accused in presence of witnesses---According to details given by prosecution witnesses, the application was drafted in presence of other persons of Muslim community who gathered for Jummah prayers in the mosque situated near place of occurrence---High Court set aside the conviction and sentence awarded to accused by Trial Court and he was acquitted of the charge---Appeal was allowed in circumstances.

Mst. Asia Bibi v. The State and others PLD 2019 SC 64 and Malik Muhammad Mumtaz Qadri v. The State PLD 2016 SC 17 rel.

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

----S. 295-C---Criminal Procedure Code (V of 1898), S.342---Use of derogatory remarks in respect of the Holy Prophet (PBUH)---Admission by accused---Failure to put such question to accused---Effect---Alleged admission of accused before complainant and investigating officer, while in custody, regarding utterance of blasphemous words, such piece of evidence was not put to him during his statement recorded under S.342, Cr.P.C.---If a piece of evidence was not put to accused while recording his statement under S.342, Cr.P.C. that could not be read in evidence---Admission of accused could not be read in evidence in circumstances.

(c) Criminal trial---

----Benefit of doubt---Scope---If there is a single circumstance which creates reasonable doubt regarding prosecution case, the same is sufficient to give benefit of the same to accused.

Ayub Masih v. The State PLD 2002 SC 1048 rel.

Tahir Bashir for Appellant.

Rana Muhammad Arif Kamal Noon, Prosecutor General Punjab along with Saeed Ahmad Shaikh, Additional Prosecutor General, Usman Iqbal Deputy Prosecutor General and Muhammad Moeen Ali, Deputy Prosecutor General for the State.

Ch. Liaqat Ali Anjum and Ch. Moazzam Tufail Gujjar for the Complainant.

2021 Y L R 138

[Lahore]

Before Aalia Neelum, J

MUHAMMAD ALI alias MUHAMMAD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 1607 of 2012, heard on 10th June, 2020.

Penal Code (XLV of 1860)---

----S. 316--- Qatl Shibh-i-Amd---Appre-ciation of evidence---Medical evidence--- Vasovagal attack---Complainant alleged that her husband died due to fist blows given to him by accused---Person who had suffered vasovagal attack was seldom saved because hardly there remained any time for his treatment---Doctor emphasized during his examination-in-chief that on the body of deceased neither external nor internal injuries were found---First Information Report had lost its value and authenticity as the same was ante-time and was not recorded till the inquest proceedings were made over by Investigating Officer---Such fact had seriously and adversely affected prosecution story and was sufficient to create a serious doubt about prosecution story that till the time of inquest proceedings FIR was not in existence---No reliance could be placed on such testimony to establish guilt of accused to form basis for conviction---High Court acquitted accused of the charge as prosecution failed to bring home charge against him---Appeal was allowed in circumstances.

Muqtadir Akhtar with Appellant.

Muhammad Akhlaq, Deputy Prosecutor General and Mian Shakeel Ahmad, Assistant Advocate General Punjab on Court's call for the State.

Nemo for the Complainant.

2021 Y L R 174

[Lahore]

Before Ch. Muhammad Iqbal, J

GHARIBWAL CEMENT LIMITED through Group General Manager---Petitioner

Versus

MEMBER (COLONIES) BOARD OF REVENUE, PUNJAB and 3 others---Respondents

Writ Petition No. 20953 of 2010, heard on 25th September, 2020.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)---

----Ss. 10 & 30(2)---Rescinding sale deed---Private treaty, sale through---State land was sold by authorities which sale was rescinded by Board of Revenue---Validity---No exception was available to transaction of sale deed obtained through private treaty or misrepresentation or fraudulent means---Board of Revenue was well within jurisdiction to undo all such transactions even if some erroneous order had been passed regarding resumption of such land---State land could not left vulnerable to the whims and caprice of intending purchasers---If after objective resolved alienation of such asset is needed then it could be disposed of through unrestricted public action, which was the most suitable universally recognized transparent standard for fetching compatible consideration amount to actual value of property in question---High Court declined to interfere in the order passed by Board of Revenue rescinding the sale deed---Petition was dismissed in circumstances.

Mian Asghar Ali v. Province of Punjab through District Collector and others 2006 SCMR 936; Mian Asghar Ali v. Government of Punjab through Secretary (Colonies) BOR, Lahore and others 2017 SCMR 118; Muhammad Munir Ahmad v. The State/Member (Judicial)-VII Board of Revenue Punjab Lahore and others (in Civil Petition No.1030-L of 2004); Province of Punjab through Collector, Sheikhupura v. Anjuman Talim-ul-Islam and others PLD 1987 SC 123; Syed Mazhar Hussain Shah through L.Rs v. Member, Board of Revenue, Punjab, Lahore and others 2006 SCMR 959; Muhammad Manzoor v. Province of Punjab and others 2011 CLC 494 and Province of Punjab through Secretary Revenue and others v. District Bar Association, Khanewal and others 2014 SCMR 1611 rel.

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

----S.23---Lawful considerations and objects---Scope---If any order is passed by any authority beyond its jurisdiction and against public policy, such order in its inception is nullity in the eyes of law and never conveys any absolute title in favour of beneficiary.

Hafeez Akhtar Randhawa v. Member (Colonies), Board of Revenue (Civil Petition No.2022-L of 2010); Hameedullah and 9 others v. Headmistress, Government Girls School Chokara, District Karak and 5 others 1997 SCMR 855; Maulana Abdul Haque Baloch and others v. Government of Balochistan through Secretary Industries and Mineral Development and others PLD 2013 SC 641 and Muhammad Arshad Khakwani v. I.U.B. and another 2011 MLD 322 rel.

Malik Ahsan Mahmood for Petitioner.

Waseem Iqbal Butt, A.A.G. for Respondents.

2021 Y L R 183

[Lahore]

Before Muhammad Ameer Bhatti, J

IJAZ HUSSAIN and 3 others---Petitioners

Versus

QAISAR MAHMOOD and 3 others---Respondents

Writ Petition No. 11040 of 2011, heard on 4th June, 2020.

Punjab Pre-emption Act (IX of 1991)---

----Ss. 13 & 25---Suit for possession through pre-emption---Compromise decree---Seeking extension of time for deposit of sale price---Suit was decreed to the extent of half of the suit land on the basis of compromise between the parties---Plaintiff filed an application for correction of order and incorporation of direction therein to deposit sale price of decreed land less the amount of Zar-e-Soam stipulating the time---Trial Court corrected the amount of sale price but refused to extend time to deposit the corrected amount---Revisional Court granted time to the plaintiff to deposit sale price---Contention of defendants was that time to deposit the decretal amount could not be extended after stipulated period---Validity---Trial Court while passing order for compromise decree neither mentioned the amount therein nor the time was fixed for deposit of sale price---Plaintiff moved application for correction of said order and price of suit land was corrected---Refusal to extend time by the Trial Court for deposit of sale price was neither justified nor sustainable in the eye of law---Trial Court had failed to fulfill its obligation by not granting time when it had made correction in the price of land---Appellate Court was justified to exercise its jurisdiction provided under the law for granting time to deposit sale price less already deposited amount of Zar-e-Soam---Court had power to extend time for deposit of sale price once good cause had been established from the record---Trial Court while making correction in the order and decree should have extended time itself already consumed for deposit of price of decreed land---Constitutional petition was dismissed, in circumstances.

Mst. Sahib Khatoon v. Allah Ditta and 10 others 1994 SCMR 2002 and Assar Ali Shah through L.Rs. and 4 others v. Syed Muzaffar Din Shah and 4 others 2007 SCMR 724 ref.

Muhammad Shabbir and others v. Bashir Ahmad 1974 SCMR 24; Bhai Khan v. Allah Bakhsh and another 1986 SCMR 849 and Nazir Ahmad and another v. Abdullah 1999 SCMR 342 rel.

Abdul Wahid Ch. for Petitioners.

Iqbal Ahmad Khan, Malik Muhammad Luqman and Nadeem Ahmad Khan for Respondents.

2021 Y L R 226

[Lahore]

Before Shahid Karim, J

AHSAN IFTIKHAR through next friend Iftikhar Ahmed Saqi---Petitioner

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LAHORE through Chairman and 9 others---Respondents

Writ Petition No. 8569 of 2020, heard on 18th September, 2020.

Calendar of the Board of Intermediate and Secondary Education, Lahore---

----Rr.15.9(3) & 15.9(8)---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court---Intermediary and secondary school examinations---Disciplinary proceedings against student---Allegations of using unfair means in examination---Conjectures and surmises---Scope---Petitioner (student) impugned order of Disciplinary Committee of Board of Intermediatory and Secondary Education whereby petitioner was adjudged guilty of tampering / forgery vis-à-vis an examination---Validity---Record revealed that no evidence was forthcoming which connected petitioner with said charges and Disciplinary Committee in its impugned order used words "doubtful and objectionable", which conveyed feeling of conjecture and surmises and same could not substitute for cogent evidence to hold petitioner culpable under applicable rules of Disciplinary Committee---No witness was produced to substantiate allegations and Disciplinary Committee's own observations revealed that probabilities were equally balanced either way---Impugned orders were set aside--- Constitutional petition was allowed, accordingly.

Samar Pervaiz v. Board of Intermediate and Secondary Education, Lahore and another PLD 1971 SC 838 rel.

Muhammad Ahsan Bhoon and Mehmood Ahmad Alwari for Petitioner.

Mahboob Azhar Sheikh for Respondents.

2021 Y L R 275

[Lahore (Rawalpindi Bench)]

Before Sadiq Mahmud Khurram, J

NEHRASIT KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 1489-B of 2020, decided on 30th September, 2020.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 365, 201 & 34---Criminal Procedure Code (V of 1898), S. 161---Qalt-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, causing disappearance of evidence of offence, common intention---Examination of witnesses by police---Bail, grant of---Last seen evidence---Delayed examination---Effect---Accused and another were alleged to have abducted and murdered the father of complainant---None had witnessed the alleged occurrence---Name of accused had cropped up during the investigation when the statement of eye-witness was recorded by Investigating Officer after two days of the occurrence---Delay was conspicuous by its magnitude and it raised a presumption that the same was used to concoct and fabricate a false story against the accused---Failure of the witness to report the matter to the complainant when he was searching for his father was prima facie indicative of his false statement---Evidentiary value of such type of evidence i.e. last seen and wajtakkar was to be determined by the Trial Court at an appropriate stage---Case of accused was one of further inquiry covered by subsection (2) of S.497, Cr.P.C.---Petition for grant of bail was allowed, in circumstances.

Rahat Ali v. State 2010 SCMR 584 and Muhammad Hussain v. Afzal Ahmed and another 1995 SCMR 932 ref.

Abid Mehmood v. State 2017 SCMR 728 and Allah Ditta v. The State and others 2012 SCMR 184 rel.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 365, 201 & 34---Qalt-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, causing disappearance of evidence of offence, common intention---Bail, grant of---Joint pointing out---Scope---Accused and another were alleged to have abducted and murdered the father of complainant---Prosecution case was that the accused persons had pointed out the place of burial of the deceased---No memo of taking into possession the dead body of the deceased, from the place of recovery, existed on record---No reliance could be placed upon the statements of the witnesses against the accused in the absence of such memo---Recovery of dead body on the joint pointing out of the accused persons had no evidentiary value---Case of accused was one of further inquiry covered by subsection (2) of S.497, Cr.P.C.---Petition for grant of bail was allowed, in circumstances.

Abdul Mateen v. Sahib Khan and others PLD 2006 SC 538; Mst. Sultana Bibi alias Rubi v. State 2011 SCMR 951; Manzoor v. The State 1986 PCr.LJ 1401; Liaquat Ali v. The State 1993 PCr.LJ 1737; Fazal Amin alias Toray v. Shahid Zaman and another 2015 YLR 1952; Javed Iqbal v. The State 2008 PCr.LJ 1578 and Wahid Bakhsh and others v. The State 1984 MLD 1549 ref.

Muhammad Mushtaq v. Mustansar Hussain and another 2016 SCMR 2123 rel.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 365, 201 & 34---Qalt-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, causing disappearance of evidence of offence, common intention---Bail, grant of---Scope---Accused and another were alleged to have abducted and murdered the father of complainant---Prosecution placed reliance on the statement of an eye-witness who had rented out the car to the co-accused wherein the deceased was abducted---Held, that said witness in his statement under S.161, Cr.P.C. had not named the accused as being involved in any manner---Case of accused was one of further inquiry covered by subsection (2) of S.497, Cr.P.C.---Petition for grant of bail was allowed.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 365, 201 & 34---Qalt-i-amd, kidnapping or abducting with intent secretly to and wrongfully confine person, causing disappearance of evidence of offence, common intention---Bail, grant of---Recovery of articles of deceased---Scope---Accused and another were alleged to have abducted and murdered the father of complainant---Prosecution case was that during investigation of the case, accused got recovered keys of motorcycle of the deceased and property papers---Held; neither in the FIR nor in the statement of widow of deceased it was mentioned that the deceased had taken any keys or property papers at the time when he left his house---Evidentiary value of such recovery had to be determined by the trial court---Such recoveries could, at the most, be used for corroboration of the main evidence, but by itself could not form basis for conviction---Case of accused was one of further inquiry covered by subsection (2) of S.497, Cr.P.C.---Petition for grant of bail was allowed, in circumstances.

Ijaz Ahmad and another v. The State 1997 SCMR 1279 rel.

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

----S. 302---Qatl-i-amd---Recovery---Joint recovery---Scope---Recovery of dead body on the pointing out of several accused and preparation of a joint recovery memo in this regard has no evidentiary value.

Manzoor v. The State 1986 PCr.LJ 1401; Liaquat Ali v. The State 1993 PCr.LJ 1737; Fazal Amin alias Toray v. Shahid Zaman and another 2015 YLR 1952; Javed Iqbal v. The State 2008 PCr.LJ 1578 and Wahid Bakhsh and others v. The State 1984 MLD 1549 ref.

Muhammad Mushtaq v. Mustansar Hussain and another 2016 SCMR 2123 rel.

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

----S. 497---Bail---Heinous nature of offence---Scope---Mere involvement of accused in a heinous offence is no ground for refusing bail who otherwise becomes entitled for the concession of bail.

Ch. Muhammad Akhtar for Petitioner.

Muhammad Bashir Paracha for the Complainant/Respondent No.2.

2021 Y L R 287

[Lahore]

Before Ali Baqar Najafi, J

MUHAMMAD MASOOD-UL-HAQ---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, BHAKAR and 2 others---Respondents

Writ Petition No. 16084 of 2014, decided on 22nd October, 2020.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Suit for recovery of dowry articles, dower amount and maintenance---Scope---Petitioner assailed judgments and decrees passed by courts below whereby the suit for recovery of dowry articles, dower amount and a house as well as for the grant of maintenance allowance was concurrently decreed---Validity---Family Court had ordered the petitioner to pay Rs. 2000 per month as previous maintenance; return of gold ornaments was refused; 50% of the claimed dowry articles were allowed and the suit for restitution of conjugal rights was decreed subject to fulfillment of conditions mentioned in column Nos. 13 and 16 of the nikahnama, which the petitioner had not fulfilled---Judgments and decrees passed by courts below did not appear to be illegal as such the constitutional petition was dismissed. [pp. 287, 288] A, B, C & D

Dr. Asma Ali v. Masood Sajjad and others PLD 2011 SC 221 rel.

Malik Matee Ullah for Petitioner.

2021 Y L R 305

[Lahore (Multan Bench)]

Before Rasaal Hasan Syed, J

MUHAMMAD ALI---Petitioner

Versus

JAFFAR ALI and 2 others---Respondents

Civil Revision No. 186-D of 2014, decided on 24th September, 2020.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Demand of talbs---Talb-i-muwathibat---Discrepancy in statements of plaintiff and informer---Non-mentioning of names of witnesses in plaint---Effect---Petitioner assailed the concurrent dismissal of his suit for pre-emption---Petitioner had asserted that he acquired knowledge of sale through witness/ informer and that on acquiring knowledge he, in presence of witnesses, announced right of pre-emption but he had not mentioned the names of witnesses allegedly present at the time of acquisition of knowledge or at the time of making the alleged talb-i-muwathibat---Statement of petitioner and the informer were discrepant as to the time when the news of sale was broken---Informer had not claimed direct knowledge of sale but had claimed that he had acquired knowledge of sale from another person, who was not produced as a witness---Findings recorded by courts below did not suffer from any misreading or non-reading of evidence or from any error of law so as to warrant interference---Revision petition was dismissed, in circumstances.

Ali Bahadur v. Muhammad Ishaq 2013 YLR 2555 and Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 rel.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Qanun-e-Shahadat (10 of 1984), Art. 129---Demand of talbs---Talb-i-ishhad--- Non-production of postman---Effect---Petitioner assailed the concurrent dismissal of his suit for pre-emption---Respondents had denied issuance or service of notice of talb-i-ishhad in the written statement and had also made such statement on oath; in result, the presumption as to the service of notice in terms of Article 129 of Qanun-e-Shahadat, 1984, stood rebutted and it was for the petitioner to prove service of notice by producing the postman---Such course was not followed therefore, petitioner was correctly deemed to have failed to prove the service of talb-i-ishhad---Revision petition was dismissed, in circumstances.

Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; Allah Ditta through L.Rs and others v. Muhammad Anwar 2013 SCMR 866; Khan Afsar v. Afsar Khan and others 2015 SCMR 311 and Mir Muhammad Khan and 2 others v. Haider and others PLD 2020 SC 233 rel.

2021 Y L R 315

[Lahore (Multan Bench)]

Before Rasaal Hasan Syed, J

Sheikh ISHTIAQ AHMAD and 7 others---Appellants

Versus

MUHAMMAD USMAN ALI SHEIKH---Respondent

F.A.O. No. 7 of 2019, decided on 9th October, 2020.

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss. 13 & 23---Civil Procedure Code (V of 1908), O.VII, R. 11---Demand of talbs---No right of pre-emption in respect of certain properties---Rejection of plaint---Controversy requiring recording of evidence---Scope---Plaintiff instituted suit claiming that the defendants had purchased the plot over which he had superior right of pre-emption---Defendants filed application for rejection of plaint on the grounds that only occupancy rights were transferred; the plot formed part of the property vested in the Development Authority; that certificate of ownership was not issued as such the transaction did not amount to sale so as to activate any right of pre-emption and that the suit was barred by provisions of S. 23 of Punjab Pre-emption Act, 1991---Application under O. VII, R. 11, C.P.C. found favour with the Trial Court which rejected the plaint and in appeal the order was set aside and case was remanded to the Trial Court---Validity---Controversy which emerged from pleadings could only be resolved after relevant documents were brought on record which included record of Development Authority and the terms and conditions of assigning of occupancy rights under the scheme of the Development Authority--- Another question which would require consideration was as to whether the transaction could be deemed to be in respect of property acquired or owned by the Development Authority and, if so, could the suit be maintained in view of the bar of S. 23(2) of the Punjab Pre-emption Act, 1991---Rejection of plaint at the stage was not permissible nor conclusive view as to the nature of transaction could be taken without evidence---High Court held that the proper course was to frame issue, allow the parties to lead evidence and thereafter determine the questions in accordance with law---Case was remanded to Trial Court for decision afresh after allowing the parties to lead evidence on the issue---Appeal was allowed, accordingly.

Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC 411; Muhammad Siddique and others v. Muhammad Sharif and others 2012 SCMR 1387; Aziz Hussain and 2 others v. Rashid Ahmad and 3 others 1992 SCMR 1018; Muhammad Ismail Qureshi and others v. Government of Punjab and others PLD 1991 FSC 80; Malik Muzaffar Ahmed v. Mjlis-e-Ilmi Society through Muhammad Zubair PLD 2016 SC 207 and Muhammad Haji alias Haji Mahmood v. Chaudhry Taj Din 2004 CLC 1050 rel.

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

----O.VII, R.11---Rejection of plaint---Factual controversy--- Scope--- Plaint alone needs to be considered and accepted as gospel truth for considering an application under O. VII, R. 11, C.P.C., unless proven otherwise through proper evidence and in the event of factual controversy the matter shall be decided after recording evidence.

Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCMR 826 and Saleem Malik v. Pakistan Cricket Board (PCB) and 2 others PLD 2008 SC 650 rel.

(c) Punjab Pre-emption Act (IX of 1991)---

----S. 2(d)--- "Sale"--- Scope--- Pre-requisite of sale will be permanent transfer of ownership of immovable property in exchange of valuable consideration.

Zulfiqar and others v. Shahdat Khan PLD 2007 SC 582 rel.

Tahir Mehmood and Habib Ullah for Appellants.

2021 Y L R 343

[Lahore]

Before Ch. Muhammad Iqbal, J

Mst. RAHEELA MALIK through Muhammad Atiq---Petitioner

Versus

FEDERAL SECRETARY, MINISTRY OF RELIGIOUS AFFAIRS AND INTERFAITH HARMONY and 3 others---Respondents

Writ Petition No. 51635 of 2020, decided on 25th November, 2020.

Civil Procedure Code (V of 1908)---

----O. XXIII, R.1---Qanun-e-Shahadat (10 of 1984), Art. 129(e)---Withdrawal of suit or abandonment of any part of claim---Presumption as to judicial acts---Scope---Petitioner challenged the legality of order passed by respondent whereby her application for restoration of revision petition was dismissed---Said revision petition was withdrawn by her counsel---Validity---Petitioner had not stated that fraud was committed by her counsel rather she had stated in her affidavit, presented before the authorities, that she had authorized her counsel to withdraw the revision petition---Petitioner's counsel had put his signatures on the margin of the order sheets and presumption of truth was attached to the judicial proceedings---Constitutional petition was dismissed

Muhammad Ramzan v. Lahore Development Authority, Lahore 2002 SCMR 1336; Fayyaz Hussain v. Akbar Hussain and others 2004 SCMR 964 and Waqar Jalal Ansari v. National Bank of Pakistan and another 2008 SCMR 1611 ref.

Malik Mujeeb-ur-Rehman for Petitioner.

Adeel Ahmad Kamran, Asst. Attorney General for Respondent No.l.

2021 Y L R 349

[Lahore]

Before Ch. Muhammad Iqbal, J

LIAQAT ALI KHAN and 10 others---Petitioners

Versus

CHIEF SETTLEMENT COMMISSIONER, MEMBER (JUDICIAL-V) and 6 others---Respondents

Writ Petition No. 128-R of 2011, heard on 7th September, 2020.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 3---Scheme for Disposal of Un-Allotted Un-Occupied/Occupied Evacuee Rural Agricultural Land---Ejectment order---Allotment of land---Petitioners were illegal occupants on evacuee land and revenue authorities had passed ejectment order---Petitioners claimed that they were bona fide purchasers from the person in whose favour land had been allotted but subsequently the allotment was cancelled, therefore, they were entitled to purchase of land in question---Validity---Ejectment proceedings were initiated against petitioners and land was resumed in favour of State---Valid ejectment order was passed and executed against petitioners who were dispossessed, such lawful dispossession extinguished their every right if any attached with land in question---Claim of petitioners went out from the domain of S. 3 of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975---As per revenue record, petitioners were illegal occupants upon State land and they had no valid enforceable right under Constitutional jurisdiction of High Court---Public property could not be doled upon any person through private treaty to extend favouritism, nepotism and for undue enrichment of individuals at the resources of public which were meant for ultimate welfare and betterment of people---Settlement authorities rightly directed to put land in question for disposal through unrestricted public auction giving first right of refusal to petitioners---Constitutional petition was dismissed, in circumstances.

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; Fazalur Rehman and others v. Province of Punjab through District Officer (Revenue), Bhakkar and another 2014 SCMR 1351; Muhammad Sharif through L.Rs v. Province of Punjab through District Officer Revenue, Pakpattan 2014 SCMR 334; 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; Provincial Government through Collector, Kohat and another v. Shabbir Hussain PLD 2005 SC 337; Muhammad Ramzan and others v. Member (Revenue) Chief Settlement Commissioner and others 1997 SCMR 1635; American International School System v. Mian Muhammad Ramzan and others 2015 SCMR 1449; Hafeez Akhtar Randhawa v. Member (Colonies), Board of Revenue Civil Petition No.2022-L of 2010; Mubarik Ali and others v. The Settlement and Rehabilitation Commissioner, Lahore and others 1968 SCMR 1235; Jahan Khan v. Suleman and others 1969 SCMR 942; Shaikh Muhammad Hafiz Ullah v. Ghulam Yasin and others 1970 SCMR 41; Saeedur Rehman and 10 others v. Government of Punjab, Lahore and 3 others 1972 SCMR 201; Shamsul Islam and another v. Sh. Arjamand and another 1982 SCMR 545; Muhammad Shafiq and others v. Settlement Commissioner and others 1986 SCMR 1456; Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC 304 and Trustees of the Port of Karachi v. Organization of Karachi Port Trust Workers and others 2013 SCMR 238 rel.

Ch. Iqbal Ahmad Khan for Petitioners.

Waseem Iqbal Butt, A.A.G. for Respondents.

Usama Hanif for Respondent No.1/Settlement Department.

2021 Y L R 388

[Lahore (Rawalpindi Bench)]

Before Sadiq Mahmud Khurram, J

Raja FALAK JAVED---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 1735-B of 2020, decided on 1st October, 2020.

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

----S. 497---Penal Code (XLV of 1860), S. 376---Rape---Bail, refusal of---Prompt FIR---Scope---Accused was alleged to have committed rape with the complainant---Matter was reported to the police by the complainant with reasonable promptitude---Immediate and spontaneous reporting of the matter had ruled out any chance of false involvement of the accused or manipulation of the narrative of the FIR---Medical evidence available on record supported the narrative of the FIR---Accused could not point towards any enmity of the complainant which could have influenced her to falsely involve the accused in the occurrence---Petition for grant of bail, being meritless, was dismissed.

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

----S. 497---Penal Code (XLV of 1860), S. 376---Rape---Bail, refusal of---Victim accompanying the accused prior to occurrence--- Scope--- Accused was alleged to have committed rape with the complainant---Contention of accused was that complainant herself had accompanied the accused prior to the occurrence, hence the offence of rape was not made out---High Court observed that even if the complainant of her own had accompanied the accused still she had never agreed to be raped---Complainant had clearly stated that the accused had committed sexual intercourse with her against her will and without her consent---Complainant might have consented to travel and shop with the accused but she had never consented to have sexual intercourse with the accused---Petition for grant of bail was dismissed, in circumstances.

Asad Mehmood Qureshi for Petitioner.

Javed Iqbal Mangral for the Complainant/Respondent No.2.

2021 Y L R 429

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi and Sadiq Mahmud Khurram, JJ

ANTI-NARCOTICS FORCE, RAWALPINDI through Regional Director---Appellant

Versus

ALI SHAH---Respondent

Criminal Appeal No. 503 of 2020, heard on 20th October, 2020.

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

----S. 32---Article (Vehicle) connected with transporting narcotics---Scope---Prosecution assailed order passed by Judge Special Court (CNS) whereby its application under S.32 of Control of Narcotic Substances Act, 1997, was dismissed and the vehicle was handed over to its owner/respondent---Section 32 of the Control of Narcotic Substances Act, 1997, clearly laid down that whenever an offence was committed which was punishable under the Act, the narcotic drugs, psychotropic substance or controlled substances, material, apparatus and utensils in respect of which or by means of which, such offence was committed shall be liable to confiscation, however, the confiscation could not be made unless and until it was proved that the owner thereof knew that the offence was being or was to be committed and the vehicle would be used for carrying such drugs and substances---Investigating Officer had not collected any evidence during investigation of the case that the respondent was in knowledge of the fact that the vehicle was to be used by the accused for carrying and transporting of the narcotic substances---Respondent could not be deprived of the custody of the vehicle in the absence of such evidence and the vehicle could not be ordered to be confiscated---Order passed by Judge Special Court (CNS) was in consonance with law and facts---Appeal was dismissed, in circumstances.

Allah Ditta v. The State 2010 SCMR 1181 rel.

Ch. Zahid Mahmood, Special Public Prosecutor for ANF/Applicant.

2021 Y L R 443

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh and Anwaarul Haq Pannun, JJ

RASHID alias JHORI---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 972 of 2016, heard on 5th October, 2020.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Safe custody---Scope---Accused was alleged to have been found in possession of 15 kilograms of "doday of poast"---Sample-bearer had kept the sample parcel in his possession for one day---Date of submission of sample in the Forensic Laboratory given by sample-bearer was contradicted by the Forensic Laboratory---Safe custody of the sample parcel could not be said to have been proved, rendering the prosecution's case to be doubtful and under the law, the doubt was always resolved in favour of the accused---Appeal against conviction was allowed, in circumstances.

The State through Regional Director ANF v. Imam Bakhsh and others 2013 SCMR 2039 rel.

(b) Criminal trial---

----Benefit of doubt---Scope---Accused is not obliged to establish a number of circumstances, creating reasonable doubts for earning an acquittal but even a single circumstance, creating reasonable doubt in the prudent mind is sufficient to extend him the benefit of doubt, in the shape of his acquittal.

Muhammad Ashraf and others v. The State and others PLD 2015 Lah. 1 and Muhammad Zaman v. The State and others 2014 SCMR 749 ref.

Prince Rehan Iftikhar Sheikh and Ch. Ahsan Ali Gill for Appellant.

Shahid Aleem, Additional Prosecutor General for the State.

2021 Y L R 545

[Lahore]

Before Jawad Hassan, J

AZHAR ALI---Petitioner

Versus

PROVINCE OF PUNJAB and others---Respondents

Writ Petition No. 203389 of 2018, heard on 16th November, 2020.

Punjab Local Government Act (XVIII of 2013) [since repealed]---

----Ss. 154 & 143---Punjab Local Government (Appeal) Rules, 2007, R.4---Constitution of Pakistan, Art. 199---Constitutional petition---Alternate remedy, availability of---Maintainability---Scope---Petitioner assailed enhancement of licence fee for establishment of a rice mill and notice of recovery---Contention of petitioner was that impugned notification issued under Punjab Local Government Ordinance, 2001, did not hold field as the same was repealed on 28-08-2013 by promulgation of Punjab Local Government Act, 2013---Validity---Section 154(2) of the Punjab Local Government Act, 2013, clearly stated that tax or fee levied under the repealed Ordinance shall continue to be in force and have effect as if it were respectively done, taken, commenced, made, directed, passed, given, executed or issued under the Act---Section 153 of the Punjab Local Government Act, 2013, empowered the successor local government to charge levy and collect all the taxes, etc., which were charged under the repealed Act---Petitioner had a right of appeal against the impugned notice under S.143 of the Punjab Local Government Act, 2013, read with R.4 of Punjab Local Government (Appeal) Rules, 2017---Petitioner had the alternate remedy before the authority concerned, therefore, the constitutional petition was not maintainable---Petition was dismissed.

Ch. Sabir Ali v. City District Government and others PLD 2017 Lah. 370; Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others 2016 SCMR 842; Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 and Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others PLD 2010 SC 969 ref.

Muhammad Amin Goraya for Petitioner.

Barrister Hassan Khalid Ranjha, Assistant Advocate-General for Respondents.

2021 Y L R 556

[Lahore]

Before Masud Abid Naqvi and Jawad Hassan, JJ

SAJID HUSSAIN and others---Appellants

Versus

GOVERNMENT OF PUNJAB and others---Respondents

I.C.A. No. 59588 of 2020, decided on 18th November, 2020.

Law Reforms Ordinance (XII of 1972)---

----S. 3---Constitution of Pakistan, Art. 199---Intra court appeal---Constitutional petition---Maintainability---Contract employee---Scope---Appellants, contract employees, challenged the validity of order passed by Single Judge of High Court whereby their writ petition was dismissed--- Validity--- Appellants were recruited purely on contract basis; their initial recruitment was not only found to be bogus and illegal but was also found in bare violation of Contract Policy; they had not challenged the order whereby their initial recruitment was declared to be illegal and their contract was not extended after its expiry---Contract employee could not maintain a Constitutional petition---Intra court appeal was dismissed accordingly.

Ministry of IPC through Secretary and others v. Arbab Altaf Hussain and others 2014 SCMR 1573 and Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs v. Muhammad Azam Chattha 2013 SCMR 120 rel.

2021 Y L R 573

[Lahore (Multan Bench)]

Before Rasaal Hasan Syed, J

ASIF HUSSAIN and another---Petitioners

Versus

Mst. BAKHO alias BAKHTO (deceased) through Legal heirs---Respondents

Civil Revision No. 654-D of 2020, decided on 9th September, 2020.

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

----S. 42---Suit for declaration---Scope---Plaintiffs claimed that their predecessor-in-interest was the real owner of the disputed property, her name was duly reflected in the Pert Sarkar for the year 1990-91 but in the disputed Pert Patwar for that year by tempering and overwriting, fraudulent entries were made to change her father's name and by doing so the land was transferred vide mutation which was a product of fraud---Courts below on examination and consideration of the documents and other evidence concluded that tempering, cutting and overwriting was made in the Pert Patwar while there was no such cutting in the Pert Sarkar as such decreed the suit---Validity---Defendants claimed to have purchased the property from someone other than the predecessor-in-interest of plaintiffs and if she was a different lady then she would have been produced in evidence as the defendants were under obligation to prove the alleged purchase in their favour---Revision petition was dismissed, in circumstances.

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

----S. 42---Punjab Land Revenue Act (XVII of 1967), S. 172---Suit for declaration---Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers---Allegation of fraud---Scope---Plaintiffs claimed that their predecessor-in-interest was the real owner of the disputed property, her name was duly reflected in the Pert Sarkar for the year 1990-91 but in the disputed Pert Patwar for that year, by tempering and overwriting, fraudulent entries were made to change her father's name and by doing so the land was transferred vide mutation, which was a product of fraud---Courts below on examination and consideration of the documents and other evidence concluded that tempering, cutting and overwriting was made in the Pert Patwar while there was no such cutting in the Pert Sarkar as such decreed the suit---Contention of defendants was that the suit was barred by the provisions of S.172 of Punjab Land Revenue Act, 1967---Validity---Serious allegations of fraud were raised in the plaint---Such determination could not be left for the decision of the Revenue Officer in summary proceedings---Courts below had rightly repelled the objection of the defendants in respect of maintainability of the suit.

Waris Khan and 18 others v. Col. Humayoun Shah and 41 others PLD 1994 SC 336 and Mst. Mir Jan and 5 others v. Ghulani Nabi 1993 SCMR 2334 ref.

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

----S. 42---Suit for declaration---Failure to seek consequential relief of possession---Effect---Suit for declaration cannot be dismissed outrightly if relief of possession is not claimed---Where the court determines that there is a valid claim then at reaching the conclusion that the plaintiff has proved his case and is entitled to the relief, it can allow amendment in the plaint and direct payment of court fee.

Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762 ref.

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

----S. 3---Dismissal of suits, etc., instituted, etc., after period of limitation---Scope---Fraud vitiates even the most solemn transactions---Court cannot knowingly endorse the fraud once it is proved to have been committed---If the transaction found to be the progeny of misrepresentation, the same cannot be protected on the grounds of limitation.

Muhammad Yaqoob v. Mst. Sardaran Bibi and others PLD 2020 SC 338 ref.

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

----O.XX, R.5 & O.XLI, R.31---Court to state its decision on each issue---Contents of judgment---Scope---Requirement of O.XX, R.5, C.P.C. and O.XLI, R.31, C.P.C., is that the court shall attend to the points raised, record its findings with reasons on all the questions raised and that the judgment shall reflect judicial application of mind to the material issues involved.

2021 Y L R 584

[Lahore]

Before Malik Shahzad Ahmad Khan and Ali Baqar Najafi, JJ

AMEER AMAN ULLAH---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 8151 of 2019, heard on 24th June, 2020.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Scope---Accused was alleged to have been found in possession of 1500 grams of charas---Report of Forensic Laboratory did not give the details of full protocols and the test applied at the time of analysis of sample of narcotics rather it simply mentioned that certain tests were conducted and contraband material recovered in the case was charas---Appeal was allowed and the impugned judgment was set aside, in circumstances.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 and Khair-ul-Bashar v. The State 2019 SCMR 930 rel.

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

----S. 9---Possession of narcotics---Scope---Provisions of the Control of Narcotic Substances Act, 1997, provide stringent punishments, therefore, their proof has to be construed strictly and the benefit of any doubt in the prosecution case must be extended to the accused.

Muhammad Hashim v. The State PLD 2004 SC 856 and Ameer Zeb v. The State PLD 2012 SC 380 ref.

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

----S. 36---Report of Government Analyst---Scope---Any report failing to describe therein the details of full protocols and the tests applied would be inconclusive, unreliable, suspicious and untrustworthy and will not meet the evidentiary presumption attached to a report of the Government Analyst under S.36(2) of the Control of Narcotic Substances Act, 1997.

(d) Criminal trial---

----Benefit of doubt---Scope---Single circumstance creating reasonable doubt would be sufficient to cast doubt about veracity of prosecution case and the benefit of said doubt has to be extended in favour of the accused not as a matter of grace or concession but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345; Akhtar Ali and others v. The State 2008 SCMR 6 and Muhammad Zaman v. The State and others 2014 SCMR 749 ref.

Mian Muhammad Awais Mazhar for Appellant.

Waqas Anwar, Deputy Prosecutor General for the State.

2021 Y L R 591

[Lahore (Multan Bench)]

Before Malik Shahzad Ahmad Khan and Sadiq Mahmud Khurram, JJ

MUHAMMAD AJMAL---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 644 and Murder Reference No. 107 of 2015, heard on 14th January, 2020.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention--- Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Prosecution case was that the accused and his co-accused committed murder of the deceased---Motive behind the occurrence was that the accused was having suspicion that deceased was having illicit relation with his Bhabi (sister-in-law)---Ocular account had been furnished by three witnesses including complainant---Said witnesses had explained their presence at the place of occurrence categorically---During the cross-examination, all the three witnesses remained consistent with regard to the sequence of their journey to the place of occurrence---Said witnesses had fairly succeeded in proving their presence at the spot and witnessing the occurrence---Witnesses were subjected to lengthy cross-examination but the defence had failed to make cracks in their deposition and veracity of their statements---Said witnesses being close relatives of the deceased had no reason to falsely implicate the accused in the commission of offence substituting him, letting off the real culprits---Nothing on record which would indicate substitution of the accused in the case with the real culprit---Accused had not been able to establish any animosity of the complainant or the police for his false involvement in the case---Said three witnesses in a straightforward manner had held the accused responsible for the murder of deceased---Incident was a broad daylight occurrence and because of previous acquaintance of the parties, question of misidentification did not arise---Presence of the witnesses was further proved as according to the inquest report it were the eye-witnesses who were mentioned in the relevant column of the said report being present at the place of occurrence at the time of the preparation of the inquest report by Investigating Officer---Column No. 8 of the inquest report showed that at the time of preparation of the same, the eyes of the deceased were closed and had the deceased met his death in absence of the witnesses, his eyes would not have been found closed---Closed eyes of the deceased further proved the prosecution's version regarding the presence of the witnesses at the place and time of occurrence---Accused had given serious blows on the head of the deceased with a piece of brick---Accused intended or knew himself that such blows were likely to fracture the skull of the victim and he must be taken to have known that he was likely to cause the death of victim and was therefore, guilty of qatl-i-amd---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Evidence of recovery of blood stained piece of a brick from the possession of the accused had been disbelieved and the prosecution had alleged a specific motive in the present case but had failed to prove the same, which constituted mitigating circumstance---As to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence which had resulted into the death of deceased was not determinable---Death sentence awarded to the accused was harsh, a sentence of the accused as awarded by the Trial Court was maintained but the death sentence awarded to the accused under S.302(b), P.P.C. was altered to imprisonment for life---Appeal was dismissed with said modification.

Irshad Ahmad and others v. The State and others PLD 1996 SC 138; Ahmad Nawaz and another v. The State 2011 SCMR 593 and Mst. Nazia Anwar v. The State and others 2018 SCMR 911 rel.

(b) Criminal trial---

----Witness---Related witness---Evidence of related witnesses---Reliance---Scope---Mere relationship of the prosecution witnesses with the deceased and inter-se is not sufficient to discredit their testimony.

Ijaz Ahmad v. The State 2009 SCMR 99 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of about one hour and twenty minutes in lodging the FIR---Scope---Prosecution case was that the accused and co-accused committed murder of the deceased---In the present case, the occurrence took place in the broad-daylight at about 2.25 p.m., which was reported by the complainant at 3.35 p.m. and whose statement was recorded by the Investigating Officer---On the basis of the recorded statement of the complainant, formal FIR was registered at 3.45 p.m.---Facts remained that the police station was at a distance of six kilometres from the place of occurrence---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 deliberation or consultation regarding false implication of the accused in the case---Appeal was dismissed with modification in sentence. [p. 600] E

Muhammad Waris v. The State 2008 SCMR 784 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Medical and ocular evidence---Corroboration---Scope---Prosecution case was that the accused and his co-accused committed murder of the deceased---In the present case, the medical evidence produced by the prosecution proved that the deceased had received injuries with a blunt weapon on the vital part of his body and he succumbed to the said injuries---Medical evidence fully supported the ocular account---Probable time between death and post-mortem as noted by the doctor coincided with the ocular account---Post-mortem examination of the dead body of deceased had been conducted quite promptly leaving no room for deliberations or fabrication of a story---Appeal was dismissed with modification in sentence.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of crime weapon from the accused---Delay in dispatch of recovered weapon for analysis---Effect---Prosecution case was that the accused and his co-accused committed murder of the deceased---Record showed that blood stained piece of a brick was recovered from the accused---Said recovery could not be relied upon as the fact remained that the occurrence in the present case had taken place on 15.10.2014, whereas the alleged recovery had been effected on 31.10.2014---Said blood-stained piece of a brick was deposited in the office of Forensic Science Agency on 05.11.2014 i.e. after 21 days of the occurrence---Report of Forensic Science Agency regarding forensic serological examination of the said blood stained piece of a brick showing the presence of human blood on the said brick was dated 12.12.2014---Said fact showed that the said article was examined for the presence of human blood and the report of Forensic Science Agency was prepared after one month and twenty seven days of the occurrence---During such a long period, the blood available on the piece of brick, if any, would have disintegrated---Not possible to believe that the blood had not disintegrated by then and therefore the said recovery of the blood stained piece of a brick could not be used as incriminating evidence against the appellant---Appeal was dismissed with modification in sentence.

Faisal Mehmood v. The State 2016 SCMR 2138 rel.

(f) 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 and his co-accused committed murder of the deceased---Motive of the occurrence was that the accused had suspicion about the illicit relations of his sister-in-law with the deceased---No further details of said motive were mentioned in the oral statement of complainant---Haunting silence with regard to the minutiae of motive alleged---No independent witness was produced by the prosecution to prove the motive as alleged---Investigating Officer of the case did not join the sister-in-law of the accused in the investigation of the case---Prosecution did not produce the said sister-in-law of accused in support of the alleged motive before the Trial Court---Circumstances concluded that prosecution remained failed to prove the motive as alleged---Appeal was dismissed with modification in sentence.

Muhammad Asif v. The State 2008 SCMR 1001 rel.

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

----S. 302--- Qatl-i-amd--- Sentence, quantum of--- Scope--- Quantum of sentence required utmost attention and thoughtfulness on the part of the court to bring the charge home to the accused for the award of normal penalty of death.

Mir Muhammad alias Miro v. The State 2009 SCMR 1188 and Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1660 rel.

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

----S. 302(b)--- Qatl-i-amd--- Motive---Scope---If the prosecution avows a motive but failed to prove the same then such failure on the part of prosecution might have reacted against a sentence of death passed against a convict on the charge of murder.

Nawab Ali v. The State 2019 SCMR 2009; Muhammad Akram alias Akrai v. The State 2019 SCMR 610; 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 rel.

Muhammad Usman Sharif Khosa and Javed Iqbal Bhatti for Appellant.

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

Ch. Faqir Muhammad for the Complainant.

2021 Y L R 635

[Lahore]

Before Ch. Muhammad Iqbal, J

ALLAH DITTA and others---Petitioners

Versus

CHIEF SETTLEMENT COMMISSIONER PUNJAB and others---Respondents

Writ Petition No. 39929 of 2020, decided on 8th September, 2020.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S.3(1)(b)---Scheme for Disposal of Un-allotted/Un-Occupied/Occupied Evacuee Rural Agriculture Land, dated 19.11.1974---Cancellation of allotment---Disposal of un-allotted land---Public auction---Petitioners were aggrieved of the order passed by Board of Revenue / Settlement authorities which was ordered to be disposed of through unrestricted public auction---Petitioners claimed that their predecessor-in-interest purchased land in question in year 1964 from the allottee and had been occupying possession of the land---Validity---Allotment of the allottee was cancelled and possession of subsequent purchaser had no protection of law which extended nil support to land grabbers and illegal occupants---Land in question was a public property which could not be doled upon any person through private treaty to extend favoritism, nepotism and for undue enrichment of individuals at resources of public which were meant for ultimate welfare and betterment of people---If disposal of land was desired by concerned Authority, the same should be disposed of through unrestricted public auction---Order passed by Board of Revenue was neither perverse, nor illegal and was without any jurisdictional defect---Constitutional petition was dismissed, in circumstances.

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; Fazalur Rehman and others v. Province of Punjab through District Officer (Revenue), Bhakkar and another 2014 SCMR 1351; Muhammad Sharif through L.Rs. v. Province of Punjab through District Officer Revenue, Pakpattan 2014 SCMR 334; Provincial Government through Collector, Kohat and another v. Shabbir Hussain PLD 2005 SC 337; Hafeez Akhtar Randhawa v. Member (Colonies), Board of Revenue, Civil Petition No.2022-L of 2010 and Arshad Waheed v. Province of Punjab PLD 2010 Lah. 510 rel.

2021 Y L R 654

[Lahore (Bahawalpur Bench)]

Before Muhammad Waheed Khan, J

MAHBOOB AHMED KHAN---Petitioner

Versus

The STATE and 14 others---Respondents

Writ Petition No. 8593 of 2019, decided on 5th October, 2020.

Criminal Procedure Code (V of 1898)---

----S. 176---Inquiry by Magistrate into cause of death---Power to disinter corpses--- Scope--- Petitioner filed application for disinterment/exhumation of dead body of deceased alleging therein that in fact the deceased was done to un-natural death, as ten persons had poisoned him---Petitioner's application was concurrently dismissed---Held; petitioner had no locus standi to file the application as he had no relation with the deceased---Sister of deceased had appeared before the Magistrate wherein she had not only refuted the allegations levelled by the petitioner but had also highlighted mala fide on the part of petitioner---One who had performed the ghusal on the dead body of deceased had appeared before the Sessions Judge wherein he had also denied the allegation levelled by the petitioner---Constitutional petition was dismissed.

Rasheed Afzaal Cheema for Petitioner.

Ch. Mansoor Aslam for Respondents Nos.5 to 15.

2021 Y L R 669

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

AMJAD ALI---Appellant

Versus

MUNIR AHMAD and others---Respondents

R.S.A. No. 213 of 2011, decided on 14th October, 2020.

Specific Relief Act (I of 1877)---

----Ss. 12 & 27(b)---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Suit for specific performance of agreement to sell---Bona fide purchaser for valuable consideration without knowledge of prior agreement---Onus to prove---Plaintiff/ appellant asserted that defendant/vendor after executing agreement to sell in his favour transferred suit land in favour of defendant/subsequent vendee---Plea raised by defendant/subsequent vendee was that he was bona fide purchaser for valuable consideration---Trial Court decreed suit in favour of plaintiff/ appellant but Lower Appellate Court reversed the findings and dismissed the suit--- Validity--- Plaintiff/appellant claimed that his prior sale via agreement to sell was in knowledge of defendant/ subsequent vendee, whereas the latter pleaded his complete ignorance---Defendant / vendor asserted that defendant/subsequent vendee was fully aware of earlier sale and purchased suit land at his own risk---Onus shifted to defendant/subsequent vendee pleading bona fide purchase---Earlier transaction settled by defendant/vendor with plaintiff/appellant was proved to be in complete knowledge of defendant/ subsequent vendee, who failed to prove passing of consideration to defendant/ vendor---In absence of making of any due inquiry, findings of Lower Appellate Court on issues relating to payment of consideration amount and bona fide purchase were tainted with misreading and non-reading of evidence---High Court set aside judgment and decree passed by Lower Appellate Court and restored that of Trial Court---Second appeal was allowed, in circumstances.

Dhanna Lal v. Shambhu AIR 1917 Nagpur 123; Veeramalai Vanniar (died) and others v. Thadikara Vanniar and others AIR 1968 Madras 383 and Sakhi Jan and others v. Shah Nawaz and another 2020 SCMR 832 ref.

Mahmood Ahmed Bhatti and M. Zaeem Bhatti for Appellant.

Ch. Muhammad Ashraf Goraya and Ch. Zulqarnain Baryar for Respondent No.1.

Ch. Muhammad Aslam Arain and Mahar Sohail Zafar Sipra, Advocates for L.Rs. of Respondent No.2(a to e).

2021 Y L R 677

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

Syed ARIF HUSSAIN SHAH through L.Rs.---Petitioner

Versus

SAKINA BIBI and others---Respondents

Civil Revision No. 1548 of 2009, heard on 26th November, 2020.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Civil Procedure Code (V of 1908), S. 115---Suit for possession of immovable property and declaration---Fraud and forgery---Bona fide purchasers from attorney---Imposing of special costs---Plaintiffs/respondents claimed to be owners of suit property and sought recovery of possession, on the ground that transfer of title was on the basis of forged power of attorney---Trial Court dismissed the suit but Lower Appellate Court decreed the same in favour of plaintiffs/respondents---Plea raised by defendants/petitioners was that they were bona fide purchasers for value from power of attorney holder---Validity--- Plaintiffs/respondents who were alleged executants of power of attorney were residents of city "F" whereas subject land was located in city "C", therefore, general power of attorney could normally be executed or registered in either of the two places but its creation at city "K", if found to be correct, was sufficient to doubt its veracity---Questioned document was an engineered by practicing forgery and fraud---Defendants/petitioners were bona fide purchasers for value from holder of forged and factious attorney deed who had not authority to transfer suit area in favour of defendants/petitioners, who merely on the basis of sale deed executed by such agent in his favour had not become rightful owners---Neither fraudulent alienation could be protected nor perpetuated and was rightly collapsed by Lower Appellate Court---High Court declined to interfere in judgment and decree passed by Lower Appellate Court as predecessor-in-interest of defendants/petitioners were in league with a forger usurped property of innocent persons---High Court advised plaintiffs/respondents to come forward to initiate criminal proceedings against delinquents, besides filing of suit for recovery of damages---High Court imposed heavy cost upon defendants/ petitioners---Revision was dismissed, in circumstances.

Sikandar Hayat and another v. Sughran Bibi and 6 others 2020 SCMR 214; Sakhi Jan and others v. Shah Nawaz and another 2020 SCMR 832; Maqsood Ahmad and others v. Salman Ali PLD 2003 SC 31; Muhammad Younas Khan v. Government of N.W.F.P. 1993 SCMR 618; Mst. Zulaikhan Bibi through Lrs. and others v. Mst. Roshan Jan and others 2011 SCMR 986; Ghulam Farid and another v. Sher Rehman through Lrs. 2016 SCMR 862; Ghulam Rasool and others v. Noor Muhammad and others 2017 SCMR 81 and Khan Muhammad Yusuf Khan Khattak v. S.M . Yousaf and 2 others PLD 1973 SC 160 ref.

Ghulam Farid Sanotra for Petitioner.

Mian Qamar-ul-Islam and Anwar Hussain Janjua for Petitioner No.1(b).

Zia Ullah Khan Niazi for Respondents Nos.1 to 6.

Ihsan Ahmad Bhindar, Liaqat Ali Malik and Sohail Zafar Sipra for Respondent No.8.

2021 Y L R 702

[Lahore]

Before Shahid Hameed Dar and Muhammad Qasim Khan, JJ

MUHAMMAD AFZAL---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 12115-B of 2016, decided on 23rd November, 2016.

Criminal Procedure Code (V of 1898)---

----S. 497---Bail---Fresh ground---Evidence of recovery witness---Scope---Accused filed fourth application for grant of bail on the ground that two recovery witnesses had not supported the prosecution case---Two of the earlier petitions had been decided on merits and the accused needed a fresh ground to render the petition meaningfully sustainable which was virtually non-existent, as evidence of two hostile formal prosecution witnesses generated no fresh ground in favour of the accused---Petition for grant of bail was dismissed, in circumstances.

The State through Advocate General, N.W.F.P. v. Zubair and 4 others PLD 1986 SC 173; Muhammad Siddique v. The State and another 2014 SCMR 304; Nazir Ahmad and another v. The State and others PLD 2014 SC 241 and Ghulam Qammber Shah v. Mukhtiar Hussain and others PLD 2015 SC 66 ref.

Fahad-ur-Rehman Tipu Zafar for Petitioner.

2021 Y L R 730

[Lahore]

Before Ch. Muhammad Iqbal, J

AKHTAR ALI---Appellant

Versus

MUHAMMAD YAAR---Respondent

E.F.A. No. 9184 of 2019, heard on 26th February, 2020.

Civil Procedure Code (V of 1908)---

----O. XXI, R. 30---Decree for payment of money--- Scope--- Decree-holder, during pendency of execution petition, entered into compromise with the judgment-debtor whereby he had admitted to accept a lesser amount subject to its payment on certain dates---Executing Court after payment of the agreed amount consigned the execution petition to record room---Validity---Decree-holder had received the amounts without any objection and in that way total agreed amount was received by him and nothing was outstanding against the judgment-debtor, as such execution petition was rightly consigned to the record room by the executing court---Appeal was dismissed.

Abdul Rauf for Appellant.

Malik Muhammad Aslam for Respondent.

2021 Y L R 766

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh and Sadiq Mahmud Khurram, JJ

MUHAMMAD IDREES---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 663 of 2019, heard on 19th December, 2019.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Prompt FIR---Safe custody---Scope---Accused was alleged to have been found in possession of 1630 grams of charas---Statements of recovery witnesses were coherent and enthused sureness--- Prosecution witnesses had supported each other on all significant facts, including date, time, place of occurrence, quantity of the recovered narcotic and the manner in which the recovery was affected---First Information Report was lodged within a short span of time---Prosecution had successfully proved the safe custody; deposit of case property from the place of occurrence to the police station and from police station to the Forensic Laboratory---Prosecution had successfully proved its case against the accused beyond any shadow of doubt---Appeal against convic-tion was dismissed, in circumstances.

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

----S. 9---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4---Possession of narcotics---Dispatch of sample for test or analysis---Scope---Accused assailed his conviction on the ground that the report of Forensic Laboratory could not be read in evidence as the sample parcel was not deposited within 72 hours of its preparation---Sample parcel was sent for analysis to the Forensic Laboratory on 26-09-2018 and the same was submitted in it on 27-9-2018----Occurrence had taken place on 18-9-2018---High Court observed that sample parcel was deposited within a reasonable time--- Accused had failed to show that the sealed sample parcel was tampered with---Appeal against conviction was dismissed, in circumstances.

Tariq Mehmood v. The State PLD 2009 SC 39 and The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 rel.

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

----Ss. 9 & 36---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6---Possession of narcotics---Reports of government analysts---Report of result of analysis---Scope---Accused assailed his conviction on the ground that report of Forensic Laboratory could not be read in evidence as the same was not clear with respect to the test conducted to identify and analyse the recovered narcotic and that it was necessary for the Forensic Laboratory to have appended the results of each and every test conducted by chemical examiner in order to establish the identity of narcotic---Held; Forensic Laboratory had declared the tests which were performed on the received item---Item received by Forensic Laboratory was found to contain charas---Report of Forensic Laboratory revealed that Gas Chromatography-Mass Spectrometry method was used for confirmation of the presumptive tests performed on the received item---Implicit reliance could be placed on such report of Forensic Laboratory in presence of confirmation by the use of Gas Chromatography-Mass Spectrometry method---Appeal against conviction was dismissed, in circumstances.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 rel.

(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 Control of Narcotic Substances Act, 1997 excludes the applicability of S.103, Cr.P.C., therefore, association of witnesses from the public is not mandatory in such cases.

Aala Muhammad and another v. The State 2008 SCMR 649 and Muhammad Hanif v. The State 2003 SCMR 1237 ref.

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

----S. 29---Presumption for possession of illicit articles---Scope---Section 29 of Control of Narcotic Substances Act, 1997 provides that once the prosecution is able to bring on record evidence to discharge the initial onus of proof then the burden shifts upon the accused to prove otherwise.

(f) Criminal trial---

----Witness---Police witness--- Scope---Testimony of police officials is as good evidence as of any other witness unless the accused establishes that the police witness who appeared against him had personal motive to falsely implicate him in the offence.

Hakim Khan v. The State 2013 SCMR 547; Surraya Bibi v. The State 2008 SCMR 825; Riaz Ahmad v. The State 2004 SCMR 988; Naseer Ahmad v. The State 2004 SCMR 1361; Fida Jan v. The State 2001 SCMR 36; Muhammad Azam v. The State PLD 1996 SC 67 and Muhammad Naeem v. The State 1992 SCMR 1617 ref.

(g) Medical jurisprudence---

----"Gas Chromatography-Mass Spectro-metry method", explained.

Abdul Sami Chaudhry for Appellant.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

2021 Y L R 860

[Lahore]

Before Ch. Muhammad Iqbal, J

Mst. SULLI and others---Petitioners

Versus

SHERA and others---Respondents

Writ Petition No. 1222 of 2013, decided on 9th October, 2020.

(a) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)--

----S. 10--- Constitution of Pakistan, Art. 199--- Constitutional petition---Laches, principle of---Applicability---Consolidation scheme---Objection---Petitioners were aggrieved of order directing Consolidation Officer to amend Consolidation Scheme---Validity---Constitutional petition before High Court was filed after lapse of 1 year and 2 months without explaining any convincing and reasonable cause of inordinate delay therefore, principle of laches was applicable---Matter in issue pertained to consolidation proceedings which contained factual controversy and the same could not be resolved in Constitutional jurisdiction---High Court declined to re-appraise such factual controversy in its Constitutional jurisdiction, as High Court could not sit as an appellate Court against concurrent decisions of Consolidation Revenue Authorities---Order in question was made by Consolidation Authorities with regard to allocation of land and it was not fit to be agitated in Constitutional jurisdiction---Allocation and demarcation of land was left open for domain of Consolidation Officer and High Court in exercise of Art. 199 of the Constitution should not reappraise such factual controversies but should concern itself only with legality of orders and not its propriety---Constitutional petition was dismissed in circumstances.

Mubarik Ali and others v. The Settlement and Rehabilitation Commissioner, Lahore and others 1968 SCMR 1235; Ghulam Rasool and others v. Member (Consolidation), Board of Revenue and others 2004 SCMR 587; Manzoor Hussain and others v. Member (Judicial-II), Board of Revenue and others 2006 SCMR 951; Muhammad Hayat and others v. Member (Consolidation) Board of Revenue and others 2007 SCMR 1950; Ghulam Qadir v. Member Board of Revenue, West Pakistan, Lahore and 4 others 1970 SCMR 292; Allah Rehman and others v. Amtul Qayyum and another 1989 SCMR 1817 and Asad Riaz v. Member Board of Revenue, Punjab, Lahore and 4 others 1997 SCMR 1611 rel.

(b) Administration of justice---

----Delay in seeking remedy---Effect---Each and every legal remedy of aggrieved person against an order is time specific---After expiry of given period the remedy stands ineffective and does not rescue any litigant---Delayed challenging order in question, in itself is a sufficient ground for denying relief to such petitioner.

Trustees of the Port of Karachi v. Organization of Karachi Port Trust Workers and others 2013 SCMR 238 rel.

Iqbal Ahmad Khan for the Petitioners.

2021 Y L R 869

[Lahore (Multan Bench)]

Before Anwaarul Haq Pannun, J

JUNAID AHMAD KHAN SHAHZAD---Petitioner

Versus

DISTRICT POLICE OFFICE, MUZAFFARGARH and 5 others---Respondents

Writ Petition No. 12824-H of 2020, decided on 14th October, 2020.

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

----S. 491---Habeas corpus---Scope---Petitioner sought recovery of his wife from the illegal and improper custody of her parents---Alleged detenue on being produced affirmed the averments of the petition and showed the desire to accompany her husband---High Court with a view to examine the bona fide of the petitioner as to whether he had contracted marriage with detenue merely as a result of his crush, momentous and impulsive passion, arising out of her bodily and behavioral charm or he had entered into the sacred bond sincerely and with religious zeal, quizzed him and he in order to fortify his bona fide as well as to forge a sense of security in monetary terms in the mind of the detenue, showed his inclination to enhance/re-affix the amount of deferred dower by submitting his sworn affidavit---High Court observed that since the petitioner had enhanced the deferred dower of alleged detenue/his wife, with his volition, therefore, the same shall be considered as integral part of nikahnama---Petition was allowed, the detenue was set at liberty to accompany her husband.

(b) Islamic law---

----Dower---Dower may be fixed after marriage---Scope---Parties of a marriage can fix/enhance the amount of dower at any time after its solemnization even, during the subsistence of their marriage.

Ghania Hassan v. Shahid Hussain Shahid and another 2016 SCMR 2170 rel.

Ch. Noman Ahmad and Rana Rizwan with Petitioner.

Muhammad Ayyub Buzdar, Assistant Advocate General.

Sahibzada Munir Raza Gilani for Private Respondents.

2021 Y L R 894

[Lahore]

Before Ch. Muhammad Iqbal, J

IMAM DIN and others---Petitioners

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Minority and Religious Affairs and others---Respondents

Writ Petitions Nos. 13404, 13405 and 14006 of 2012, heard on 9th October, 2019.

Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----S.8---Qanun-e-Shahadat (10 of 1984), Art.100---Evacuee trust property---Cancellation of allotment---Old record---Presumption of correctness---Property in question was declared to be Evacuee Trust property and allotment made in favour of petitioners against their claim was cancelled by Chairman Evacuee Trust Property Board---Validity---Order passed by Chairman Evacuee Trust Property Board was never reversed by any competent authority---Property was declared as an evacuee trust property and such longstanding entries were also made part of quadrennial periodical record (Jamabandies)---Old entries in revenue record had acquired presumption of correctness under Art. 100 of Qanun-e-Shahadat, 1984---Such presumption was not displaced by petitioner through any believable and trustworthy record---Allotments in question were made after target date i.e. 1-6-1964 and Chairman Evacuee Trust Property Board was well within jurisdiction to take cognizance of reference made to him, who after proper adjudication rightly cancelled allotments of petitioners---High Court declined to interfere in cancellation of allotment as Chairman Evacuee Trust Property Board did not commit any illegality---Constitutional petition was dismissed, in circumstances.

Abdul Ghani and others v. Mst. Yasmeen Khan and others 2011 SCMR 837; Saleem Akhtar v. Nisar Ahmad PLD 2000 Lah. 385; District Evacuee Trust Committee v. Mashraf Khan and 3 others 1989 SCMR 1636; District Evacuee Trust Committee v. Muhammad Umar and others 1990 SCMR 25; Secretary, District Evacuee Trust Property v. Qazi Habibullah and 2 others PLD 1991 SC 586; Qazi Akbar Jan and others v. The Chairman District Evacuee Trust Committee, Peshawar and others 1991 SCMR 2206; Auqaf Department through Chief Administrator Auqaf, Punjab, Lahore v. Secretary, Ministry of Religious Zakat, Ushar and Minorities Affairs Government of Pakistan, Islamabad and 3 others 2009 SCMR 210; Deputy Administrator, Evacuee Trust Property, Karachi and others v. Abdul Sattar and another 2000 SCMR 1929 and Secretary to the Government of Pakistan, Minorities Affairs Division, Islamabad and 2 others v. Mst. Shah Jehan Bano and others 2005 SCMR 907 rel.

Ch. Iqbal Ahmad Khan for Petitioners.

Shoaib Ahmad Ranjha, Assistant Attorney General for Respondent No.1.

Nassir Ahmad Awan and Rana Zahid Nasim Shahid for Respondents Nos. 2 and 3/ETPB.

2021 Y L R 912

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

ZAFAR ABBAS and 4 others---Petitioners

Versus

MEMBER, BOARD OF REVENUE, PUNJAB and 18 others---Respondents

Writ Petition No. 57337 of 2020, decided on 9th November, 2020.

Punjab Land Revenue Act (XVII of 1967)---

----S.135---Constitution of Pakistan, Art. 199--- Constitutional petition---Factual controversy---Joint holdings, partition of---Petitioners assailed concurrent orders passed by revenue authorities for partition of joint holdings---Validity---Petitioners failed to prove that respondent was not sharer or he was awarded more land than his entitlement---Revenue hierarchy while passing concurrent orders focused compactness of Wandas and potential/ worth/location of block awarded to sharers---High Court while exercising jurisdiction under Art.199 of the Constitution could not go deep into factual controversy requiring evidence---Orders in question were neither coram non judice nor ultra vires---High Court declined to interfere in the matter as the orders were passed while keeping in mind the parameters in dividing property to right holders as per their shares---Constitutional petition was dismissed, in circumstances.

Ch. Iqbal Ahmad Khan for Petitioners.

2021 Y L R 935

[Lahore]

Before Abid Aziz Sheikh and Mirza Viqas Rauf, JJ

AMBREEN MOAZAM ALI---Appellant

Versus

AHMED ZIA CHAUDHRY and 4 others---Respondents

Regular First Appeal No. 58154 of 2019, heard on 13th January, 2021.

Specific Relief Act ( I of 1877 )---

----S.12---Suit for specific performance of agreement to sell immoveable property---Specific performance---Equitable relief---Scope--- Contumacious conduct of plaintiff---Effect---Contention of the appellant/plaintiff was that she could not deposit balance sale consideration as some of the share-holders were abroad and that her counsel did not affix the court fee---Held, that it was own claim of the appellant/plaintiff that huge amount (of six crore) was outstanding on her part as balance sale-consideration---Mandatory for the party (plaintiff or defendant who sought enforcement of agreement under the Specific Relief Act, 1877, that the balance amount be deposited in the Court on the first appearance or on the date after the institution of the suit as per the permission of Court and any omission in said regard would entail dismissal of suit---When the time, fixed in the agreement to sell, approached the plaintiff should have been ready to show her willingness for performance of the sale agreement ---Appellant/plaintiff was to show his/her bona fide by depositing the total sale consideration in the Court to demonstrate her readiness and willingness for performance of the sale agreement and any contumacious omission in said regard would entail dismissal of the suit for specific performance being an equitable relief---Trial Court, in the present case, specifically directed the appellant to deposit balance consideration amount along with proper court fee as per valuation of the suit within a period of two months, but neither balance amount nor court-fee was affixed by the appellant---Conduct of the appellant showed that she was not serious in performing her agreed part of contract or in pursuing her remedy of specific performance---Said conduct of the appellant on the touchstone of equitable principles on the subject, disentitled the appellant of equitable relief of specific performance---Contention of appellant that some of the share-holders were living abroad would not absolve her as no share-holder was even party to the lis---Conduct of the appellant was contumacious in not depositing the balance consideration amount, he was lawfully denied the equitable relief of specific performance---No illegality or infirmity was found in the impugned judgment and decree passed by the Trial Court---Appeal was dismissed, in circumstances.

Hamood Mehmood v. Mst. Shabana Ishaque and others 2017 SCMR 2022; Messrs Kuwait National Real Estate and others v. Messrs Education Excellence and others 2020 SCMR 171; Aqeel Feroz v. Shahid Jamil Sethi and others 2020 MLD 1669; Muhammad Kashif Vohra v. Muhammad Ismail and others 2020 YLR 2024; Muhammad Zafar Iqbal v. Hameeda Naz and others 2019 CLC 1866; Ghulam Nabi Shaikh v. Firdous Matri and others 2019 YLR 223; Hamood Mehmood v. Mst. Shabana Ishaque and others 2018 YLR 713; Shaikh Muhammad Asghar v. Muhammad Abdullah and others 2018 CLC 1409 and Shahzad Nabi v. Naseer Turabi and others 2020 CLC 300 ref.

Muhammad Tariq Bashir Awan for Appellant.

Ch. Muhammad Sarwar for Respondents.

2021 Y L R 977

[Lahore]

Before Shahid Bilal Hassan, J

FAISAL AFZAL through Attorney---Petitioner

Versus

CHIEF SETTLEMENT COMMISSIONER, (MEMBER JUDICIAL-VIII), LAHORE

and 3 others---Respondents

Writ Petition No. 43553 of 2019, decided on 19th December, 2019.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability--- Interim order---Verification proceedings---Proceedings for verification of claim were pending before Chief Settlement Commissioner---Petitioner contended that Chief Settlement Commissioner had no jurisdiction to entertain and adjudicate upon the matter---Validity---In earlier proceedings initiated by petitioner High Court directed revenue authorities to associate him in proceedings and then to proceed accordingly---Chief Settlement Commissioner decided the matter in pursuance of earlier order passed by High Court---Nature of order in question was that of interim and Constitutional petition was not maintainable---High Court declined to entertain and discuss merits of case as matter was sub judice in view of earlier interlocutory order passed by High Court---Constitutional petition was dismissed, in circumstances.

Dr. Ahmad Iqbal and 9 others v. Member Board of Revenue Chief Settlement Commissioner and others PLD 2010 Lah. 249; Ch. Sir Muhammad Zafrullah Khan and others v. The Custodian of Evacuee Property, West Pakistan and Karachi and others PLD 1964 SC 865; Sher Afzal Khan and others v. Haji Razi Abdullah and others 1984 SCMR 228; Shamshad and others v. Mukammil Shah and others 1984 SCMR 912; Mst. lqbal Siddiqui v. Assistant Settlement Commissioner (Urban) and others PLD 1984 Lah. 291; Bilqis Begum and others v. Fazal Muhammad and others 1987 SCMR 1441; Khawaja Bashir Ahmad v. The Additional Settlement Commissioner, Rawalpindi and others 1991 SCMR 1604; Hafiz Noor Muhammad and others v. Ghulam Rasul and others 1999 SCMR 705; Syed Istijab Hassan and 4 others v. Member (Settlement and Rehabilitation Wing), Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore and 2 others 1999 YLR 1627; Jamal-Ud-Din v. Member, Board of Revenue and 4 others 2001 CLC 81; Government of Punjab, Colonies Department, Lahore and others v. Muhammad Yaqoob PLD 2002 SC 5; Pakistan Transport Company Ltd. v. Walayat Khan through Legal Heirs 2002 SCMR 1470; Sagheer Muhammad Khan and 5 others v. Member (Judicial) Board of Revenue, Punjab and 4 others 2009 YLR 1255; Rubina Habib and others v. Province of Punjab and others 2019 CLC Note 36; Shamir, through Legal heirs v. Faiz Elahi, through Legal Heirs 1993 SCMR 145; Wali Muhammad v. Ellahi Bakhsh through L.Rs. and others 2005 SCMR 1526; Muhammad Sadiq (decd.) through L.Rs. and others v. Mushtaq and others 2011 SCMR 239; Bashir Ahmad Khan v. Pakistan PLD 1997 Lah. 423 and Abdur Rahman Bhatti and another v. Member (Colonies), Board of Revenue, Punjab, Lahore and another 2006 CLC 543 ref.

Noor Muhammad, Lambardar v. Member (Revenue), Board of Revenue, Punjab, Lahore 2003 SCMR 708; Mst. Fatima Zohra and another v. Salimuddin and others 1988 MLD 605 and Amir Saleem v. Presiding Officer and others PLD 2013 Lah. 607 rel.

Mian Muhammad Hussain Chotiya for Petitioner.

Ch. Iqbal Ahmad Khan and Ahmad Waheed Khan for Respondents Nos.2 to 4.

Muhammad Yaqoob Kanjoo for Respondent No.1.

Syed Shadab Jafri, Additional Advocate General.

2021 Y L R 1002

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi and Sadiq Mahmud Khurram, JJ

BILAL KHAN alias MISAL KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 506 of 2017 and Murder Reference No. 77 of 2019, heard on 20th October, 2020.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Chance witness---Scope---Accused was charged for committing murder of the son of complainant by firing---Motive behind the occurrence was that there was a minor scuffle between deceased and accused---Prosecution case revolved around the statements of complainant and a witness---Relationship of the said witnesses with the deceased was on record---Deceased was the son of complainant and maternal cousin of witness---Said witnesses were admittedly not the residents of the place of occurrence---Complainant, during cross-examination, stated that the place of occurrence was at a distance of about hundred meters from his house---Complainant had stated that the house of witness was situated three houses away from his house---Admittedly, none of the prosecution witnesses had their residences or their businesses at the place of occurrence---Alleged eye-witnesses were not mentioned in column No.4 of the inquest report as being the ones who were present at the time of preparation of the said inquest report by the Investigating Officer---Said witnesses were also not the ones who had identified the dead body of the deceased at the time of the post-mortem report---Said witnesses claimed that after the occurrence they put the then injured (deceased) in a Rickshaw and proceeded to the hospital---Clothes of both the witnesses should have been smeared with blood in circumstances, however, Investigating Officer did not take any such blood stained clothes of the witnesses in possession---Said omission struck at the roots of the case of the prosecution and laid bare the untruthful and false claim of the said witnesses to have been present at the place of occurrence at the time of occurrence---Both the said witnesses were under a duty to provide convincing explanation appealing to a prudent mind of their presence at the crime spot otherwise their testimony had to be declared questionable and unacceptable---All those omissions were conspicuous by their absence---In absence of physical proof or the reason for the presence of the witnesses at the crime scene, the same could not be relied upon---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Mst. Mir Zalai v. Ghazi Khan and others 2020 SCMR 319; Nadeem alias Kala v. The State and others 2018 SCMR 153; Muhammad Rafiq v. State 2014 SCMR 1698 and Nasrullah alias Nasro v. The State 2017 SCMR 724 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Unnatural conduct of accused---Scope---Accused was charged for committing murder of the son of complainant by firing---Eye-witnesses stated that the occurrence took place only when they had arrived at the place of occurrence, said narrative of the witnesses that the accused kept waiting for their arrival at the place of occurrence and thereafter committed the same was unnatural and could not be believed, it was opposed to human conduct that an assailant would keep waiting for the arrival of the witnesses prior to commission of the offence---Illogical that being perceptive of the fact that by pending the matter the accused ran the risk of the arrival of the witnesses and then deposing against the accused even then the assailant kept waiting for their arrival---Such behaviour, on part of the accused, ran counter to natural human conduct and behaviour---Both eye-witnesses, in circumstances, were not present at the time of occurrence at the place of occurrence and had not witnessed the occurrence---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

State through Advocate-General, Khyber Pakhtunkhwa, Peshawar v. Hassan Jalil and others 2019 SCMR 1154 and Muhammad Imran v. The State 2020 SCMR 857 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Night time occurrence---No source of light---Accused was charged for committing murder of the son of complainant by firing---Record showed that 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 assailant, was taken into possession by the Investigating Officer---Despite the fact that as per prosecution's own claim the occurrence had taken place at about 1.30 a.m. (night) furthermore, eye-witnesses did not in their statements before the Trial Court or during the investigation of the case mentioned the presence of any light source in which they were able to identify the assailant at the time of occurrence---Furthermore, the 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 time of incident for the witnesses to make such a positive identity of the assailant nor the witnesses produced any such source of light during the investigation of the case or during the trial---Prosecution failed to establish the fact of such availability of light source and in absence of their ability to do so, it could not be presumed the existence of such a light source---Absence of any light source had put the whole prosecution case in murk---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Hameed Gul v. Tahir and 2 others 2006 SCMR 1628; Basar v. Zulfiqar Ali and others 2010 SCMR 1972; Azhar Mehmood and others v. The State 2017 SCMR 135 and Arshad Khan v. The State 2017 SCMR 564 rel.

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

----S. 302(b)--- Qanun-e-Shahadat (10 of 1984), Art. 129(g)--- Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Withholding material witnesses---Scope---Accused was charged for committing murder of the son of complainant by firing---Eye-witnesses stated that the incident of firing at the deceased happened in an area surrounded by various shops---Both the said witnesses stated that five six shops were present at the place of occurrence which were opened and 10-15 persons were also present there---Admittedly, none of the shop keepers, who were present at the place of occurrence at the time of occurrence, as mentioned by the eye-witnesses themselves, appeared as prosecution witnesses before the Trial Court during the trial to support the prosecution case---Prosecution was under a bounden duty to produce the witnesses who were the residents of the place of occurrence---Prosecution case suffered from inherent defects which were irreconcilable as it was---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Nadeem alias Nanha alias Billa Sher v. The State 2010 SCMR 949 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Ocular and medical evidence---Contradictions---Scope---Accused was charged for committing murder of the son of complainant by firing---Record showed that both the eye-witnesses stated that the deceased was fired at from close proximity---Contrary to that, Medical Officer, who conducted the post-mortem examination of the dead body of the deceased, did not observe any blackening present on any of the wounds observed by him---Had the firing at the deceased been made from such a short distance as suggested by the prosecution witnesses then blackening on the wounds must have been observed by the Medical Officer who conducted the post mortem examination of the dead body of the deceased---Ocular account was to be rejected as being contrary to the medical evidence, in circumstances---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Barkat Ali v. Muhamad Asif and others 2007 SCMR 1812 and Mian Sohail Ahmed and others v. The State and others 2019 SCMR 956 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Lodging FIR promptly---Scope---Accused was charged for committing murder of the son of complainant by firing---Record showed that the oral statement of complainant was recorded by the Investigating Officer of the case, at 3.30 a.m. (night) and the formal FIR was recorded by at 3.50 a.m.---However, the post mortem examination of the deceased had been conducted prior to the registration of the FIR at 2.50 a.m.---Perusal of the post mortem examination revealed that the time of conducting the same had been mentioned at 2.50 a.m. and Medical Officer in his statement before the Trial Court also stated that the post mortem examination was conducted at 2.50 a.m.---Complainant also stated that the post mortem examination of the deceased was started at 2.50 a.m. whereas eye-witness stated that post mortem examination of the dead body of the deceased was started at 2.30 a.m.---All the witnesses were in unison that the post mortem examination of the deceased was conducted prior to the registration of the FIR and even prior to the recording of the oral statement of the complainant---Circumstances of the case and the statements of the witnesses suggested that it was only after consultation and concert that the oral statement of the complainant was prepared and the same was neither prompt nor spontaneous---No corroboration of the prosecution evidence could be had from the said oral statement---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Motive not proved---Scope---Accused was charged for committing murder of the son of complainant by firing---In the present case, the motive of the occurrence, as stated by complainant was that the accused nursed a grudge against the deceased regarding an altercation which had taken place between them---No further details of the said motive were given by complainant in his statement before the Trial Court---Furthermore, it was not discernible from the perusal of the statement of complainant that whether he was in the knowledge of the reason for the said scuffle---Bereft nature of the details of the motive of the occurrence had constrained to hold that the prosecution failed to establish the motive of the occurrence---Haunting silence with regard to the particulars of motive alleged---Consequently, it was not determinable as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence which had resulted into the death of deceased---Failure of the prosecution to produce any relevant evidence in support of the motive instituted that the accused had no motive to commit the occurrence---Prosecution remained unable to establish any motive---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---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) Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 103---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Non-association of private witnesses---Effect---Weapon of offence recovered from the accused---Reliance---Scope---Accused was charged for committing murder of the son of complainant by firing---Investigating Officer did not join any witness of the locality during the recovery of the pistol from the accused, which was in clear violation of S.103, Cr.P.C., and therefore could not be used as incriminating evidence against the accused, being evidence which was obtained through illegal means and was hit by the exclusionary rule of evidence---Prosecution also failed to prove the exclusive possession of the accused over the place of recovery of the pistol as the same was made from a place which was accessible to others---Recovery of pistol from the accused thus did not further the case of prosecution in any manner--- Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Ismail and others v. The State 2017 SCMR 898 rel.

(j) Criminal trial---

----Abscondence---Scope---Abscondence of an accused could be used as a corroborative piece of evidence, which could not be read in isolation, but it had to be read along with substantive piece of evidence.

Asadullah v. Muhammad Ali PLD 1971 SC 541; Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373; Muhammad Sadiq v. Najeeb Ali 1995 SCMR 1632; Muhammad Khan v. State 1999 SCMR 1220; Gul Khan v. State 1999 SCMR 304; Muhammad Arshad v. Qasim Ali 1992 SCMR 814; Pir Badshah v. State 1985 SCMR 2070; Amir Gul v. State 1981 SCMR 182; Muhammad Farooq and another v. The State 2006 SCMR 1707; Nizam Khan and 2 others v. The State 1984 SCMR 1092 and Rohtas Khan v. The State 2010 SCMR 566 rel.

(k) 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 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.

Raja Ghaneem Aabir Khan for Appellant.

Sajjad Hussain Bhatti, Deputy Prosecutor General for the State.

Muhammad Yaqoob Sheikh for the Complainant.

2021 Y L R 1028

[Lahore]

Before Muhammad Qasim Khan, J

NAUMAN ALMAS---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 1869-B of 2019, decided on 12th March, 2019.

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 7 & 20---Criminal Procedure Code (V of 1898), S. 498---Penal Code (XLV of 1860), S. 380---Theft in dwelling house---Pre-arrest bail, grant of---Jurisdiction of Banking Court---Scope---Complainant, a company deputed by Bank to safeguard pledged stock, got lodged an FIR against the accused under S. 380, P.P.C., for stealing the stock pledged with the Bank---Validity---Provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 had an overriding effect on anything inconsistent contained in any other law for the time being in force, including Cr.P.C. read with P.P.C., and whenever an offence was committed by a customer, it could only be tried by the Banking Court constituted thereunder and no other forum or the ordinary criminal court had jurisdiction in the matter---Action of filing a complaint and getting registered a criminal case against the accused despite availability of remedy before the Banking Court was a clear indicator of mala fide on the part of prosecution---Petition for grant of pre-arrest bail was allowed.

Muhammad Asif Nawaz v. ASJ and others 2014 PCr.LJ 1 = 2014 CLD 45 ref.

Syed Mushahid Shah and others v. Federal Investigation Agency and others 2017 SCMR 1218 and Alamdar Hussain v. National Accountability Bureau through Chairman and others 2017 CLD 1101 rel.

Shahid Ikram Siddiqui with Petitioner.

Ms. Saba Saeed Sheikh for the Complainant.

2021 Y L R 1031

[Lahore (Rawalpindi Bench)]

Before Sadaqat Ali Khan and Sadiq Mahmud Khurram, JJ

INTIKHAB AMEER and 3 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 141-J and Murder Reference No. 83 of 2017, heard on 28th September, 2020.

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

----Ss. 302(b), 324, 337-F(v), 337-L(2), 337-D, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly--- Appreciation of evidence---Sentence, reduction in---Prosecution case was that the accused party assaulted on the complainant party while armed with deadly weapons, due to which brother of the complainant died whereas two nephews of the complainant sustained injuries---Prosecution produced four witnesses including injured to establish the ocular account of the occurrence---Said witnesses had explained their presence at the place of occurrence categorically and their presence was even otherwise admitted by the accused persons---Presence of the said witnesses at the place of occurrence was quite probable and natural, especially when injured witnesses had stamp of injuries on their persons---Witnesses had attributed the causing of injuries on their persons to the accused persons--- Witnesses remained consistent with regard to the sequence of the occurrence during the cross-examination---Said witnesses being close relatives of the deceased as well as the accused had no reason to falsely implicate the accused persons in the commission of the offence or substituting them and letting off the real culprits---Presence of the said witnesses at the place of occurrence, at the time of occurrence stood proved beyond a shadow of doubt---Appeal against conviction was dismissed with some modification in sentence.

Irshad Ahmad and others v. The State and others PLD 1996 SC 138 and Muhammad Waris v. The State 2008 SCMR 784 rel.

(b) Criminal trial---

----Witness---Related witness---Reliance---Scope---Mere relationship of the prosecution witness with the deceased and inter-se was not sufficient to discredit his testimony.

Ijaz Ahmad v. The State 2009 SCMR 99 rel.

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

----Ss. 302(b), 324, 337-F(v), 337-L(2), 337-D, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Sentence, reduction in---Delay of three hours and fifteen minutes in lodging the FIR---Effect---Prosecution case was that the accused party assaulted on the complainant party while armed with deadly weapons, due to which brother of the complainant died whereas two nephews of the complainant sustained injuries---Record showed that the occurrence took place in the broad-daylight at about 10.30 a.m. which was reported by the complainant on the same day at 1.15 p.m., when the complainant got recorded his oral statement to the police at the hospital and the formal FIR was registered at 1.45 p.m.---Police station was at a distance of eleven kilometres from the place of occurrence, thus, FIR was got lodged within a short duration---Complainant not only named the accused persons but also mentioned each and every minor as well as material fact of the incident therein---Said fact, of course, excluded the possibility of deliberation or consultation regarding false implication of the accused persons--- Because of previous acquaintance of the parties, question of misidentification did not arise---Appeal against conviction was dismissed with some modification in sentence

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

----Ss. 302(b), 324, 337-F(v), 337-L(2), 337-D, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Sentence, reduction in---Ocular account corroborated by medical evidence---Scope---Prosecution case was that the accused party assaulted on the complainant party while armed with deadly weapons, due to which brother of the complainant died whereas two nephews of the complainant sustained injuries---Medical evidence proved that the deceased and the witnesses had received injuries on their persons with the weapons yielded by the accused persons and deceased succumbed to the injuries---Medical evidence fully supported the ocular account---Probable time between the injuries received by the deceased and the injured witnesses and their medical examinations as conducted by Medical Officer coincided with the time of occurrence as mentioned by the prosecution witnesses---Injured were examined by Medical Officer quite promptly leaving no room for pondering or manufacturing of a story by the prosecution witnesses---Medical Officers recorded that none of the injuries observed by them on the persons of the deceased as well as the injured witnesses were fabricated---Medical Officer stated that he observed as many as nine incised wounds on the body of deceased at the time of post-mortem examination caused by sharp edged weapon---Medical Officer observed two entry wounds caused by a firearm weapon on the person of one injured, three entry wounds caused by a firearm weapon and one incised wound on the person of other injured and two entry wounds caused by a firearm weapon and one incised wound on the person of another injured---Said injuries had been attributed to the accused persons by the witnesses in their statements before the Trial Court---Ocular account of the occurrence was totally corroborated by the medical evidence---Appeal against conviction was dismissed with some modification in sentence.

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

----Ss. 302(b), 324, 337-F(v), 337-L(2), 337-D, 147, 148 & 149---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Specific plea of exercise of their right of private defence---Effect---Prosecution case was that the accused party assaulted on the complainant party while armed with deadly weapons, due to which brother of the complainant died whereas two nephew of the complainant sustained injuries---In the present case, the accused persons had taken the plea of exercise of their right of private defence of their person, however, said plea as such was neither traceable in the evidence nor the accused persons produced any reliable evidence in defence to prove the same---All the witnesses and the deceased had received multiple injuries by sharp edged weapons and firearm weapons but the accused persons failed to explain the said injuries---Defence version as put-forth to the prosecution witnesses during cross-examination and also advanced in the statements of the accused persons under S.342, Cr.P.C. was based on a couple of suggestions, which suggestions were categorically denied by all the prosecution witnesses to whom they were put---Accused persons had claimed that during the occurrence the two accused were injured---Trial Court examined Medical Officer as court witness so as to prove the Medico Legal Examination Certificates of the said accused persons as prepared by the witness, who had since gone abroad---Another Medical Officer appeared and stated that she identified the handwriting of Medical Officer, who issued the Medico Legal Examination Certificates of the said accused persons---Medical Officer had not determined the probable duration of the injuries observed by him on the persons of the accused persons---When the said accused was examined no bleeding or oozing of blood was observed by said Medical Officer which clearly established that the accused persons had not received the injuries during the occurrence as bleeding or oozing of blood should have been observed by Medical Officer---Accused persons immediately fled away from the place of occurrence after the commission of the offence and were arrested subsequently by the Investigating Officer---Said conduct of the accused persons was also relevant for the purpose of exposing the hollowness of their plea that they acted in the exercise of their right of private defence---Circumstances established that the accused persons failed to produce any evidence that the said two accused had received any injury at the hands of the deceased or the witnesses at the time of occurrence---Plea raised by the accused persons in their statements under S.342, Cr.P.C., or through suggestions put to the prosecution witnesses in cross-examination was not borne out from the record---Appeal against conviction was dismissed with some modification in sentence.

Shahid Ghafoor v. The State 2007 SCMR 1338 and Navid Akhtar and another v. Muhammad Saeed Khan and another 2004 SCMR 1469 rel.

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

----Ss. 302(b), 324, 337-F(v), 337-L(2), 337-D, 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 weapons of offence from the accused persons---Reliance---Scope--- Prosecution case was that the accused party assaulted on the complainant party while armed with deadly weapons, due to which brother of the complainant died whereas two nephews of the complainant sustained injuries---Record showed that two chhurries were recovered from two accused, however, said recovery could not be relied upon as the fact remained that the occurrence had taken place on 09.08.2013, whereas the alleged recovery of the chhurri from the accused had been effected on 21.08.2013---Other alleged recovery of the chhurri from the co-accused had been made on 02.09.2013---Report of Forensic Science Agency regarding forensic serological examination of the said churri, allegedly recovered from the accused showing the presence of human blood on the said churri was dated 13.09.2013 and the said article was analyzed for the presence of human blood after more than a month---During such a period of more than a month, the blood available on the churri, if any, would have disintegrated, thus, it was not possible to believe that the blood had not disintegrated by then and therefore the said recovery of the churri could not be used as incriminating evidence against the said accused---Recovery of churri could not be used as incriminating evidence against the co-accused---Appeal against conviction was dismissed with some modification in sentence.

Faisal Mehmood v. The State 2016 SCMR 2138 rel.

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

----Ss. 302(b), 324, 337-F(v), 337-L(2), 337-D, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Motive was not proved---Effect---Prosecution case was that the accused party assaulted on the complainant party while armed with deadly weapons, due to which brother of the complainant died whereas two nephews of the complainant sustained injuries---In the present case, the motive of the occurrence given in the oral statement of complainant was that the accused was married to the daughter of deceased and they were blessed with a daughter---Relations between the accused and his wife had soured 20/25 days prior to the occurrence, due to which the said lady had returned to her home leaving back her daughter and wished to see her on the day of occurrence and when witness went to bring the daughter of that lady to their home, the accused attacked him and subsequently the occurrence took place---Record showed that the daughter of deceased neither joined the investigation of the case nor appeared before the Trial Court to prove the said motive of the occurrence---Failure of the prosecution to produce daughter of the deceased had resulted in concluding that the prosecution had failed to establish the motive of the occurrence by not producing the best evidence available in that respect---Consequently, it was not determinable in the case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence which had resulted into the death of deceased---Prosecution failed to prove the motive of the occurrence---Appeal against conviction was dismissed with some modification in sentence.

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

----Ss. 302(b), 324, 337-F(v), 337-L(2), 337-D, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Sentence, quantum of---Prosecution case was that the accused party assaulted on the complainant party while armed with deadly weapons, due to which brother of the complainant died whereas two nephews of the complainant sustained injuries---Prosecution case was fully proved through the evidence of eye-witnesses---Said eye-witnesses stood the test of lengthy cross-examination, but their evidence could not be shaken---Evidence of eye-witnesses was quite natural, straightforward and confidence inspiring---Ocular account of the prosecution as given by the eye-witnesses was fully supported by the medical evidence furnished by the Medical Officers therefore, the prosecution had proved its case against the accused persons beyond the shadow of any doubt---Evidence of recovery of churri from the possession of the accused had been disbelieved; prosecution had alleged a specific motive in the case but had failed to prove the same; it was not determinable in the case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence which had resulted into the death of deceased---Death sentence in such state of affairs, awarded to the accused was quite harsh---Conviction of the accused was maintained but the sentence of death awarded to him was altered to imprisonment for life---Sentence awarded to the accused persons under Ss. 324 & 149, P.P.C. was reduced from imprisonment for ten years to imprisonment for four years---Remaining sentences awarded to the accused persons were maintained---Appeal against conviction was dismissed with said modification.

Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1660 rel.

(i) Criminal trial---

----Sentence, quantum of---Question of quantum of sentence required utmost attention and thoughtfulness on the part of the court.

Mir Muhammad alias Miro v. The State 2009 SCMR 1188 rel.

(j) Criminal trial---

----Motive---Scope---If a specific motive had been alleged by the prosecution then it was duty of the prosecution to establish the said motive through cogent and confidence inspiring evidence---Failure to prove the motive might be considered a mitigating circumstance in favour of the accused.

Ahmad Nawaz and another v. The State 2011 SCMR 593; Mst. Nazia Anwar v. The State and others 2018 SCMR 911; Nawab Ali v. The State 2019 SCMR 2009; Muhammad Akram alias Akrai v. The State 2019 SCMR 610; 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 rel.

Basharat Ullah Khan for Appellants.

Sajjad Hussain Bhatti, Deputy Prosecutor General for the State.

Ghulam Mehdi Khan for the Complainant.

2021 Y L R 1116

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD IJAZ and 2 others---Petitioners

Versus

AMANAT ALI---Respondent

Civil Revision No. 1035 of 2011, heard on 12th November, 2020.

Punjab Pre-emption Act (IX of 1991)---

----S.13---Suit for possession through pre-emption right---Concurrent findings of facts by two Courts below---Talb-i-Muwathibat (prompt demand)---Proof---Confirmation of sale--- Plaintiff/ respondent claimed his superior right of pre-emption on the plea that he was Shafi Shareek (co-sharer)---Trial Court and Lower Appellate Court concurrently decided suit and appeal in favour of plaintiff / respondent---Contention of defendant / petitioner was that there was delay in making Talb-i-Muwathibat---Validity---Sine qua non for pre-emptor of each case was to pronounce Talb-i-Muwathibat immediately upon receiving information of sale irrespective of the fact that conditions laid down for completion of transaction in question were fulfilled---Such was an inflexible nature of the demand of Talb and did not permit pre-emptor to cause any delay to perform it even if he was not certain that sale had been completed in all respects---Pre-emptor was bound to perform Talb-i-Muwathibat spontaneously regardless of the credibility of information---Sale under pre-emption was already known to plaintiff/ respondent or at least apprised to him on 22-1-2007 through proceedings before revenue authorities---Pronouncement of first demand was delayed for clear nine days while introducing story regarding its performance on 31-1-2007, which was mere concoction---Judgments and decrees passed by two Courts below were example of wrong exercise of jurisdiction and were tainted with misreading and non-reading of evidence besides patent violation of law floating on its surface---High Court in exercise of revisional jurisdiction could not shut its eyes and was always under obligation to rectify the error by interference in such like illegal findings---High Court set aside concurrent findings of two Courts below and suit was dismissed---Revision was allowed, in circumstances.

Muhammad Nazeef Khan v. Gulbat Khan 2012 SCMR 235; Mst. Rooh Afza v. Aurangzeh and others 2015 SCMR 92; Ghulam Muhammad and 3 others v. Ghulam Ali 2004 SCMR 1001; Mushtari Khan v. Jehangir Khan 2006 SCMR 1238; Muhammad Nawaz alias Nawaza v. Member Judicial BoR and others 2014 SCMR 914 and Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others 2016 SCMR 24 rel.

Mian Mushtaq Mehdi Akhtar, Sardar Muhammad Asim Javed and Rana M. Ashraf Khan for Petitioners.

Humera Bashir Chaudhry, Sh. Naveed Shahryar, Muhammad Shafique Ahmad and Zubera Bashir Ch. for Respondent.

2021 Y L R 1159

[Lahore]

Before Sardar Muhammad Sarfraz Dogar and Asjad Javaid Ghural, JJ

QASIM QAYYUM---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman and 2 others---Respondents

Writ Petition No. 14545 of 2021, decided on 25th March, 2021.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a) & 9(b)--- Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Consistency, principle of---Applicability---Delay in conclusion of trial---Accused was arrested on 4-4-2019 and out of 110 prosecution witnesses evidence of only 8 prosecution witnesses was recorded---Three co-accused persons had been granted post arrest bail by High Court on the sole ground of statutory delay in conclusion of trial---Validity---Petitioner was behind the bars for about two years---Case against petitioner was exactly identical to that of his co-accused persons, therefore, petitioner was also entitled to the relief claimed for on the basis of rule of consistency---Bail was allowed, in circumstances.

Qazi Misbah-ul-Hassan for Petitioner.

2021 Y L R 1206

[Lahore (Multan Bench)]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD ZAFAR IQBAL---Petitioner

Versus

SADOZAI KHAN and 2 others---Respondents

Civil Revision No. 24-D of 2011, heard on 16th March, 2020.

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss. 13 & 24---Suit for possession through pre-emption---Plaintiff deposited sale price of the property one day beyond statutory period---Failure to plead Acknowledgment-due card for dispatch of notice of Talb---Effect---Petitioner challenged the concurrent dismissal of suit---Suit was dismissed on two counts; firstly, that zar-e-soem was deposited one day beyond the time required by first proviso of S.24 of the Punjab Pre-emption Act, 1991; secondly, the performance of requisite demands was not duly proved---Validity---Starting and ending day of thirty days could not be excluded for making good 1/3rd of the sale price, as such the Trial Court had justifiably concluded that its deposit was one day beyond the statutory period---Study of plaint though reflected that notices were dispatched, yet it nowhere disclosed to have been made through registered post accompanied by Acknowledgement Due Card---Impugned judgments were perfectly rendered by the Courts below---Revision petition was dismissed, in circumstances.

Nabi Ahmed and others v. Muhammad Arshad and others 2008 SCMR 1685 not foll.

Muhammad Tufail v. Mst. Akhtari Begum PLD 2019 Lah. 153; Hasnain Nawaz Khan v. Ghulam Akbar and another PLD 2013 SC 489; Malik Tariq Mehmood and others v. Ghulam Ahmed and others PLD 2017 SC 674; Muhammad Jahangir v. Muhammad Abbas and 2 others 2004 CLC 538; Raja v. Tanvir Riaz and others 2006 CLC 1455; Wali Muhammad through L. Rs. and others v. Ghulam Nabi 2018 MLD 1044 and Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others PLD 2010 SC 604 ref.

Awal Noor v. District Judge, Karak and 8 others 1992 SCMR 746; Hafiz Muhammad Ramzan v. Muhammad Bakhsh PLD 2012 SC 764 and Basharat Ali Khan v. Muhammad Akbar 2017 SCMR 309 rel.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 24---Plaintiff to deposit sale price of the property---Scope---Section 24, Punjab Pre-emption Act, 1991, unambiguously and unequivocally confirms that it is mandatory in nature and made obligatory for the Court seized of the suit to require the pre-emptor to deposit zar-e-soem within maximum thirty days of institution of the suit, otherwise, he has to face consequences of its dismissal as required by sub-section (2) ibid.

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

----S.148---Enlargement of time---Scope---Where the time is fixed by the Statute, the Court has no power to extend the same from its outer limit, even while assuming jurisdiction under S.148, C.P.C.

(d) Administration of justice---

----Maxim "A communi observantia non est recedendum: When a thing is to be done in particular manner, it must be done in that very way and not otherwise.

Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others PLD 1971 SC 61 and Raja Hamayun Sarfraz Khan and others v. Noor Muhammad 2007 SCMR 307 ref.

Ch. Ghulam Mohy-ud-Din and Zubair Ahmad Virk for Petitioner.

Mehr Abdul Ghafoor Araien, Atif Mohtshim Khan and M. Shafiq Ahmad for Respondents.

2021 Y L R 1211

[Lahore]

Before Raja Shahid Mahmood Abbasi and Shehram Sarwar Ch., JJ

IQBAL HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 93-J and Murder Reference No. 167 of 2017, heard on 14th September, 2020.

(a) Criminal trial---

----Each criminal case had its own peculiar facts and circumstances and hardly coincide with each other on salient features.

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

----Ss. 302(b), 337-A(ii), 337-A(iv), 459 & 34---Qatl-i-amd, Shajjah-i-mudihah, Shajjah-i-munaqqilah, hurt caused whilst committing lurking house trespass or house breaking, common intention---Appreciation of evidence---Delay of about three and half days in lodging the FIR---Scope---Accused was charged that he and co-accused entered into the house of complainant, committed murder of the father of complainant and also injured his mother and sister by inflicting hatchet blows---Record showed that during the intervening night of the day of incident at about 12.30 a.m. the occurrence took place but the FIR was lodged after 3-1/2 days whereas police station was located at seven kilometres from the venue of incident---Complainant and witnesses shifted the deceased in injured condition to the hospital---Neither complainant nor witnesses bothered to report the incident to the police and get the FIR registered instantaneously---Record showed that there was an inordinate delay of three and half days in setting the machinery of law in motion, but the prosecution had not advanced any plausible explanation in that regard---Said sole circumstance had made the story incorporated in FIR doubtful---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 337-A(ii), 337-A(iv), 459 & 34---Qatl-i-amd, Shajjah-i-mudihah, Shajjah-i-munaqqilah, hurt caused whilst committing lurking house trespass or house breaking, common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused and co-accused entered into the house of complainant, committed murder of the father of complainant and also injured his mother and sister by inflicting hatchet blows---Motive behind the occurrence was stated to be that there was an exchange of marriage of accused with injured/sister of the complainant, but he ousted her one month prior to the incident, but subsequently wanted to rehabilitate her forcibly and on refusal of her father, he extended threats to him---Record showed that accused was the husband of female injured witness, son-in-law of other female injured witness and brother-in-law of complainant---Crime report showed that accused had deserted his wife/female injured witness a month prior to the incident, meaning thereby, previous ill-will, grudge and malice of complainant party existed against the accused---Chances for deliberations and consultation on the part of the complainant party for false implication of the accused could not be ruled out---All the witnesses had attributed identical role of giving hatchet blows on the persons of injured females to co-accused, who was acquitted during the same trial and while pronouncing the judgment of acquittal, they all were held untrustworthy and unreliable witnesses---Complainant party had shown satisfaction over the findings of Trial Court regarding acquittal of said co-accused of the accused by not challenging the same; however, testimony of witnesses was partially accepted to the extent of accused without realizing that independent and strong corroboration from unimpeachable source was required, which was conspicuously missing---Circumstances suggested that eye-witnesses were untrustworthy and unreliable witnesses and as such conviction and sentence of the accused could not be maintained on the basis of such type of shaky evidence---Appeal against conviction was allowed, in circumstances.

Ghulam Sikandar and another v. Mamraz Khan and others PLD 1985 SC 11; Iftikhar Hussain v. The State 2004 SCMR 1185; Akhtar Ali and others v. The State 2008 SCMR 6; Ghulam Mustafa and another v. State 2009 SCMR 916 and PLD 2019 SC 527 rel.

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

----Ss. 302(b), 337-A(ii), 337-A(iv), 459 & 34---Qatl-i-amd, Shajjah-i-mudihah, Shajjah-i-munaqqilah, hurt caused whilst committing lurking house trespass or house breaking, common intention---Appreciation of evidence---Contradictions in the statements of witnesses---Scope---Prosecution case was that the accused and co-accused entered into the house of complainant, committed murder of the father of complainant and also injured his mother and sister by inflicting hatchet blows---In the present case, though injured witness/wife of accused reiterated the story incorporated in FIR that the accused and co-accused, while equipped with hatchets, entered in the house after scaling over the wall and inflicted injuries to her as well as her father/deceased and mother and thereafter eye-witnesses attracted to the spot---Contrary to the narrations of crime report as well as the statement of said injured witness, the other eye-witnesses deviated from their earlier version by stating that as soon as the accused trespassed into the house, the female witnesses raised hue and cry upon which the complainant along with male witnesses also attracted to the spot and witnessed the tragedy with their own eyes---Said noted material contradiction and crucial improvement was introduced only to establish the presence of eye-witness, complainant and given up witnesses at the spot at relevant time---Such an attempt on the part of the prosecution had badly shattered their credence and credibility---Appeal against conviction was allowed, in circumstances.

Javed Iqbal v. State 2016 SCMR 787 and Zaheer Sadiq v. Muhammad ljaz 2017 SCMR 2007 rel.

(e) Criminal trial---

----Witnesses---Injured witness---Scope---Injuries on the body of injured witnesses only indicate their presence at the place of occurrence but did not necessarily amount that whatever the injured witnesses had stated was a gospel truth.

Muhammad Pervez and another v. The State 2007 SCMR 670; Amin Ali and another v. The State 2011 SCMR 323 and Nazar Ahmad v. Muhammad Iqbal and another 2011 SCMR 527 rel.

(f) Criminal trial---

----Medical evidence---Scope---Medical evidence might confirm the ocular account with regard to seat, nature and duration of injuries and the kind of weapon used for causing such injuries but it could not connect the accused with the commission of crime.

Muhammad Tasaveer v. Hafiz Zulqurnain and 2 others PLD 2009 SC 53; Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 and Ghulam Mustafa and another v. The State 2009 SCMR 916 rel.

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

----Ss. 302(b), 337-A(ii), 337-A(iv), 459 & 34---Qatl-i-amd, Shajjah-i-mudihah, Shajjah-i-munaqqilah, hurt caused whilst committing lurking house trespass or house breaking, common intention---Appreciation of evidence---Recovery of blood stained hatchet at the instance of accused---Reliance---Scope---Prosecution case was that the accused and co-accused entered into the house of complainant, committed murder of the father of complainant and also injured his mother and sister by inflicting hatchet blows---Said recovery was shown to have been effected from a field of sugarcane and that was testified by witness, who, while appearing in the witness box did not utter a single word to the effect that the accused had made any disclosure and in furtherance thereof he had got recovered the weapon of offence---Recovery of weapon of offence had not been proved by the prosecution beyond the shadow of doubt---Recovery of hatchet and the report was supportive of direct evidence and not the evidence of charge and did not offer any help to the prosecution case in the absence of any trustworthy and confidence inspiring eye-witness account---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 337-A(ii), 337-A(iv), 459 & 34---Qatl-i-amd, Shajjah-i-mudihah, Shajjah-i-munaqqilah, hurt caused whilst committing lurking house trespass or house breaking, common intention---Appreciation of evidence---Motive not proved---Scope---Accused was charged that he along with his co-accused entered into the house of complainant, committed murder of the father of complainant and also injured his mother and sister by inflicting hatchet blows---Motive behind the occurrence was stated to be that there was an exchange of marriage of accused with injured/sister of the complainant, he ousted her one month prior to the incident, but subsequently wanted to rehabilitate her forcibly and on refusal of her father, he extended threats to him---Record showed that the accused had ousted his wife/injured witness a month prior to the occurrence but thereafter he was intending to forcibly rehabilitate her and on refusal of her father, he along with co-accused committed the occurrence---On the other hand, the accused maintained that his wife/injured witness used to beat his old mother, due to which he had divorced her and sent her to the house of her parents, but her in-laws were forcing him to take her back and on refusal, they implicated the accused in that mysterious incident which had taken place during odd hours of night---Motive was double edged weapon which might cut either side---If it was the reason for the accused to commit the occurrence, it would be equally a reason for his false implication in the case---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

(i) Criminal trial---

----Benefit of doubt---Principle---One circumstance creating doubt would be enough to extend benefit of the same to the accused.

Khalid Rasheed Chaudhry (Defence Counsel) for Appellant.

Tariq Javed, Additional Prosecutor General for the State.

2021 Y L R 1252

[Lahore (Bahawalpur Bench]

Before Ch. Abdul Aziz and Farooq Haider, JJ MUHAMMAD BILAL---Appellant

Versus

The STATE---Respondent Criminal Appeal No. 198-J and Murder Reference No.29 of 2016, decided on 12th September, 2019.\

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of about three hours in lodging the FIR---Effect---Accused was charged that he and three unknown co-accused committed murder of wife of the complainant by firing---Motive behind the occurrence was that motorbike of complainant was stolen, subsequently, accused made phone call and demanded money for return of his motorbike, son and wife of complainant went for taking back his stolen motorbike but accused did not meet them and thereafter committed the offence---Record showed that occurrence allegedly took place at 05.30 p.m. on 30.03.2014, deceased in injured condition was shifted to Hospital by complainant and cited eye-witnesses, where she succumbed to the injuries---Investigating Officer reached there and recorded statement of complainant at 08.15 p.m. in the hospital and in the light of same, FIR was chalked out at 08.25 p.m. in the police station---Close scrutiny of the record revealed that according to post-mortem report deceased died within 30-minutes after receipt of injuries due to excessive haemorrhage and blood loss---Complainant had clearly stated during his statement before the court that after about 1 or 1/2 hour of the occurrence, she was shifted from the place of occurrence---Said fact showed that deceased expired at the place of occurrence much prior to her stated shifting to hospital---Perusal of site plan of place of occurrence clearly showed that dead body of the deceased was lying at the place of occurrence, therefore, the claim/version of the prosecution that deceased was shifted in injured condition from the place of occurrence to the hospital and she expired there had not been established rather clearly falsified---Such scenario clearly showed that said claim/version was concocted just to cover the delay in lodging FIR---Nutshell was that FIR in that case was not promptly recorded rather same was got registered after consultation, deliberation, concoction, procurement of witnesses and fabrication of false version, hence, it had lost its efficacy and resultantly smashed the case of prosecution---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused was charged that he along with his three unknown co-accused committed murder of wife of the complainant by firing---Post-mortem report mentioned that time of death provided through police papers was 05.00 p.m---Investigating Officer had clearly stated during his statement before the court that he recorded statement of complainant at about 05.00, meaning thereby that occurrence took place prior to 05.00 p.m.---Question arose as to where said statement was recorded at 05.00 p.m.; answer was very simple that it was suppressed and subsequently statement of complainant had been prepared---Fard Biyan revealed that time of occurrence as 05.30 p.m. had been subsequently/separately added/written in the same after recording complete statement whereas in the inquest report time of occurrence had been mentioned as 05.00 p.m.---Prosecution, in such state of affairst was not certain about exact time of occurrence and recording of statement of the complainant---Such scenario had made the allegedly given time of occurrence, time of death, time of recording statement of the complainant as dubious and polluted, therefore, it could be safely said that prosecution had remained failed to establish those vital aspects of the case with certainty/exactness---Complainant and both other cited eye-witnesses were not residents of the village where occurrence allegedly took place rather they were residents of another vicinity hence, they were chance witnesses---Presence of said witnesses at the place of occurrence and testimony could only be believed if same was corroborated by some independent and strong piece of evidence but the same was absolutely lacking/missing in the case---Complainant had clearly stated in his statement before the court that he did not know the distance of place where occurrence took place---Complainant had further stated that prior to occurrence, accused was not known to him---Son of deceased in his statement before the court had not deposed about accompanying of complainant with them to the place of occurrence and presence of complainant at the time of occurrence---Perusal of statement of son of deceased clearly showed that complainant neither accompanied them to the place of occurrence nor was present at the relevant time at the place of occurrence---Prosecution case was that assailants were four in number equipped with firearm weapons and place of occurrence was in their complete control then if complainant, his brother and his son were at the place of occurrence then why they had not been targeted rather deceased had been killed---Son of complainant with whom deceased was boarding on motor cycle had not received even a single scratch during occurrence---Said aspect had also raised eye-brows regarding their presence at the relevant time at the place of occurrence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Non-availability of justification of presence of witnesses at the place of occurrence--- Scope--- Accused was charged that he along with three unknown co-accused committed murder of wife of the complainant by firing---Record showed that deceased expired within 30-minutes after receipt of injuries due to excessive blood loss---If complainant/husband of the deceased, brother of complainant and son of the deceased were present there at the relevant time of occurrence they could have moved her immediately to hospital for medical aid---If complainant and cited eye-witnesses were present there at the time of occurrence and as alleged shifted deceased to hospital on motor cycle then their clothes must have been smeared with blood but none of them had produced any such clothes---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive was not proved---Scope---Accused was charged that he and three unknown co-accused committed murder of wife of the complainant by firing---Prosecution version was that motor cycle of the complainant was stolen and accused through phone call asked the complainant to bring money and get his motor cycle back but registration number, colour and any proof of ownership of said motor cycle could not be provided by the complainant in the FIR, during investigation or trial---Complainant did not get registered any report, complaint or case with respect to alleged theft of his motorcycle---Complainant did not produce any phone or phone number to the police on which accused allegedly called him and asked him to bring money and get motorcycle--- Complainant did not produce any call data in that regard during investigation or trial---Said motorcycle or its recovery memo was not produced during trial---Version of the prosecution was that complainant, cited eye-witnesses and deceased went to the place of occurrence on two motor cycles but neither their number, model, colour, company had been told nor said motor cycles had been produced during investigation or trial of the case---Said motor cycle had not been shown in the site pan of place of occurrence---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular and medical evidence---Contradictions---Scope---Accused was charged that he and three unknown co-accused committed murder of wife of the complainant by firing---Prosecution case was that firing made by accused hit the deceased at her right shin (posterior) and left thigh (medial)---Perusal of pictorial diagram clearly suggested that entry wounds could not be caused at such locale by firing of one assailant at a time because their locale was absolutely contrary to each other---Even motor cycle had not been hit---Duration of time mentioned in post-mortem report between death and post-mortem i.e. 6-8 hours also did not tally with the time given by the prosecution through ocular account---Medical evidence could not tell about identity of the assailants---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon and crime empties---Reliance---Scope---Accused was charged that he along with his three unknown co-accused committed murder of wife of the complainant by firing---Record showed that allegedly recovered gun and empties were sent together to the Forensic Science Agency for comparison therefore, said recovery was inconsequential and report of the Forensic Science Agency was of no help to the prosecution---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Proclamation of accused---Scope---Accused was charged that he along with three unknown co-accused committed murder of wife of the complainant by firing---Neither any warrant nor any proclamation had been got exhibited---Even alleged proclamation had not been put to the accused during his examination under S.342, Cr.P.C., therefore, same could not be used against him---Appeal against conviction was allowed, in circumstances.

Ahsan Shahzad and another v. The State and others 2019 SCMR 1165 rel.

Farooq Haider Malik for Appellant.

Ch. Asghar Ali Gill, Deputy Prosecutor General for the State.

Muhammad Sohail Akhtar Alkara for the Complainant.

2021 Y L R 1261

[Lahore (Rawalpindi Bench)]

Before Atir Mahmood, J

QASIM ALI and 2 others---Petitioners

Versus

PROVINCE OF PUNJAB through Secretary, Irrigation Department, Lahore

and 4 others---Respondents

Writ Petitions Nos. 2038, 2360, 1739, 1813, 1671, 1853, 2209, 1630 and 1412 of 2020, heard on 2nd February, 2021.

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

----Ss. 4 & 17(4)---Punjab Land Acquisition Rules, 1983, R. 7---Issuance of notification for acquisition of land for the construction of dam---Scope---Acquiring Agency proceeded further after a decade of issuance of notification under S.4 of the Land Acquisition Act, 1894 (Act, 1894) for acquisition of land; issued addendum acquisition notification including further land and also invoked emergency---Held, that no notification, under S.5 of the Act 1894 was issued and neither any extension was sought for nor granted by the Board of Revenue---No other proceedings took place in pursuance of notification, rather addendum acquisition notification including further land was issued after more than nine (09) years and four (04) months of notification under S.4 of the Act 1894 and then notification under S.17(4) of the Act 1894 was issued to invoke urgency in the matter---Rule 7 of the Punjab Land Acquisition Rules, 1983, prescribed a period of one year for issuance of notice under S.5 of the Act 1894 from the date of issuance of Notification under S.4 of the Act 1894---Land Acquisition Act, 1894 nowhere gave unfettered powers to the Acquiring Agency to sleep over the rights of the citizens and not to conclude the acquisition proceedings---Acquiring agency had not unlimited time to conclude the acquisition process rather they were required to complete the acquisition proceedings within reasonable time as the land owners, whose lands were proposed to be acquired, could not be put in agony of uncertainty for such a long period of more than nine years---Record revealed that the procuring agency had deposited the amount of compensation in the year 2019-2020---Had the said amount been deposited in the year 2010 or 2011 (when the acquisition proceedings were initiated) and had the award been made at that time then the compensation awarded at that time could have been accepted by the land owners, there could be slight difference between the amount of compensation awarded and the amount demanded by the land owners, but after about decade the situation was altogether changed, therefore, the land owners could not be expected to accept presently the rates of their lands prevailing ten years before---Notification under S.4 of the Land Acquisition Act, 1894, in the present case, had become redundant and un-proceedable---High Court set aside impugned notifications under Ss.4 & 17(4) of the Act as well as addendum---Procuring Agency was, however, at liberty to acquire the land for construction of the proposed dam by way of issuance of fresh notification under S.4 of the Act---Constitutional petitions were allowed, in circumstances

Messrs Mehraj Flour Mills and others v. Provincial Government and others 2001 SCMR 1806; Divisional Engineer (Dev.) N-II T & T Gujranwala and 3 others v. Rana Muhammad Sharif 2002 CLC 985 and Chiniot Co-operative Housing Society Limited through President v. Government of Punjab through Secretary Cooperative Department and 2 others PLD 2016 Lah. 293 ref.

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

----S. 4--- "Reasonable period"---Interpretation---No exact definition for the term " reasonable time" existed and the same could vary in different cases---Reason varied in its conclusion according to idiosyncrasy of the individual and the time and circumstances in which he thought---"Reasonable time" was to be so much time as was necessary under the circumstances to do conveniently what the contract/duty required should have been done in a particular case; in other words, "reasonable time" meant, as soon as circumstances permitted.

Mst. Kubra Amjad v. Mst. Yasmeen Tariq and others PLD 2019 SC 704 ref.

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

----S. 4--- Acquiring of land---Notification---Issuance of addendum notification---Scope---Acquiring Agency issued the addendum to include further lands in already proposed lands after about decade of issuance of notification under S.4 of the Land Acquisition Act, 1894---Held, that Acquiring Agency had issued the addendum-in-question just to deprive the landowners from the proper and adequate compensation of their lands proposed to be acquired---While making the award under the land, the compensation of the acquired land was determined on the basis of the prices prevailing in that area in the preceding one year of the notification under S.4 of the Land Acquisition Act, 1894---If the notification under S.4 of the Act was to be allowed to continue through the addendum, the same would amount to allow the Acquiring Agency to give compensation of the acquired land to the land owners at the rates prevailing in the year preceding the one year in which the notification under S.4 of the Act was issued---If addendum was disallowed, the Acquiring Agency would have to pay the present price of the land---Price of the land was ever increasing and there was a lot of difference in value of the land in about decade which could not be equated with present rate as prices of the land had increased manifold during said period---Potential value of land proposed to be acquired had also increased as various housing schemes/societies had been developed nearby---Act of the Acquiring Agency to issue addendum after a decade of issuance of notification under S.4 of the Act was not only mala fide on their part but also a "dacoity" on the rights of the landowners aimed at to get undue benefit therefrom by depriving the landowners from the true value of their properties which was not only unjustified but also indefensible---High Court set aside impugned notifications under Ss.4 & 17(4) of the Act, 1894 as well as the addendum---Acquiring Agency were, however, at liberty to acquire the land for construction of the proposed dam by way of issuance of fresh notification under S.4 of the Act---Constitutional petitions were allowed, in circumstances.

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

----Preamble--- Acquisition law---Responsibility of the State---Scope---Acquisition law was an oppressive law whereby the land owners were deprived from their right of ownership of land by the State---State was responsible to protect and safeguard the rights of the landowners by providing them proper and adequate value of their properties.

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

----Ss. 4 & 17(4)---Issuance of notification for acquisition of land for the construction of dam------Urgency in the matter---Public interest---Scope---Acquiring Agency proceeded further and invoked urgency after a decade of issuance of another notification under S.4 of the Land Acquisition Act, 1894 for acquisition of land---Held, that since the matter-in-question pertained to "public interest" as the public-at-large was expected to benefit from the project/dam to be constructed over the acquired land, the urgency could be invoked by the Acquiring Agency, therefore, there was no illegality in issuance of notification under S.17(4) of the Land Acquisition Act, 1894---In the present case, High Court declared redundant/illegal the very notification under S.4 of the Act and addendum thereto, therefore, the notification under S.17(4) of the Act issued in pursuance of the said notification as well as addendum could not sustain---Constitutional petitions were allowed, in circumstances.

Khurram Masood Kiani, Attique-ur-Rehman Kiani for Petitioners (in connected Writ Petitions Nos. 2360 and 1739 of 2020).

Muhammad Atif Farzauq Raja for Petitioners (in connected Writ Petition No. 1813 of 2020).

Sardar Abdul Raziq Khan for Petitioner (in connected Writ Petition No. 1671 of 2020).

Raja Muhammad Faisal Ghani Janjua and Muhammad Adrees Mirza for Petitioners (in connected Writ Petitions Nos.1853, 2209, 1630 and 1412 of 2020).

Muhammad Taimoor Malik and Mian Kashif Saleem for Petitioners.

Mirza Asif Abbas, Assistant Advocate General for the State.

Capt. Mehmood, Commissioner, Rawalpindi, Capt. Anwarul Haq, Deputy Commissioner, Rawalpindi, Ghulam Abbas, Assistant Commissioner Saddar, Rawalpindi, Ms. Rameesha Javed, Assistant Commissioner, Kallar Syedan, Sheikh Moeen, Chief Engineer, Potohar Zone, Rawalpindi/Islamabad, Ali Haider, XEN (Operations), Potohar Zone, Rawalpindi/Islamabad and Adeel Afzal, S.D.O. for Resondents.

2021 Y L R 1299

[Lahore]

Before Abid Aziz Sheikh, J J

EHANGIR SIRAJ DOGAR---Petitioner

Versus

DISTRICT JUDGE and another---Respondents

Writ Petition No. 12044 of 2021, decided on 22nd February, 2021.

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

----S.12---Visitation right---Choice of minors---Scope---Petitioner was father of minors who was aggrieved of visitation right provided to respondent-mother of minors---Plea raised by petitioner was that minors did not want to meet their mother---Validity---Question of custody of visitation schedule could not be determined solely by deduction from rule of law rather it required an exercise of judicial discretion dependent upon relevant facts and circumstances---All three minors appeared before Family Court and stated that they wanted to live with their father---Such statement did not mean that minors would be kept away for all times from their mother and not allowed to develop any bonding with her---Lower Appellate Court rightly observed that since both parties were at daggers drawn, it could not be ruled out that minors would have been subjected to some brain washing against mother---Once children would reach age of discretion, custody matters were to be disposed of in terms of their wishes which itself would constitute their welfare---To deprive mother from meeting minors was not only harsh and cruel but was also against welfare and interest of minors who would further be influenced and brain washed against their mother were not able to develop any bonding with her---High Court declined to interfere in schedule of visitation---Constitutional petition was dismissed in circumstances.

Syed Maqsood Ali v. Sofia Naushaba 1986 SCMR 426; Mukhtar Ahmad Khan v. Mst. Aziza Begum PLD 1975 Lah. 86; Mrs. Parveen v. Kh. Muhammad Ashar PLD 1975 Lah. 334; Mrs. Shaukat Khalid v. Additional District Judge, Rawalpindi and 2 others 1989 CLC 1377 and Saad Amanullah Khan v. IVth Senior Civil Judge, (South), Karachi and 3 others PLD 2008 Kar. 499 rel.

Shaharyar Sanaullah Hashmi and Bawar Hussain Dogar for Petitioner.

2021 Y L R 1346

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mahmood Abbasi and Sadiq Mahmud Khurram, JJ

MUHAMMAD ANWAR and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 1010 and Murder Reference No. 87 of 2017, heard on 26th October, 2020.

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

----Ss. 302(b), 337-A(i) & 337-F(i)---Qatl-i-Amd, Shajjah-i-Khafifah and Ghayr-Jaifah Damihah---Appreciation of evidence---Maxim: Falsus in uno falsus in omni bus---Applicability---Acquittal of co-accused persons---Effect---Testimony of injured witness---Motive, absence of---Four accused persons faced trial for committing Qatl-i-Amd of husband of complainant at night time---Trial Court convicted two accused persons one was sentenced to death and the other was sentenced to imprisonment for life whereas remaining two were acquitted of the charge---Validity---If witness was not coming out with whole truth, evidence of such witness could not be used either for convicting accused or acquitting some of them facing trial in the same case, as was enshrined in Maxim falsus in uno falsus in omni bus---Facts which injured witness narrated were not to be implicitly accepted rather those were to be attested and appraised on the principles applied for appreciation of evidence of any prosecution witness regardless of him being injured or not---Contradictions existed in statement of prosecution witnesses with regard to particulars of motive alleged---Not determinable as to what was the real cause of occurrence and as to what had actually happened immediately before occurrence which resulted into death of husband of complainant---Failure of prosecution to produce any relevant evidence in support of motive instituted that accused persons had no motive to commit the occurrence--- Prosecution remained unable to establish any motive---One tainted piece of evidence could not corroborate another tainted piece of evidence---High Court set aside conviction and sentence awarded to accused persons and they were acquitted of the charge---Appeal was allowed in circumstances.

Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No. 238-L of 2013 PLD 2019 SC 527; Nazir Ahmad v. Muhammad Iqbal and another 2011 SCMR 527; Amin Ali and another v. The State 2011 SCMR 323; Muhammad Ashraf v. State 2012 SCMR 419; Muhammad Mansha v. The State 2018 SCMR 772; Muhammad Arif v. The State 2019 SCMR 631; Bashir Ahmed and another v. The State and others 2019 SCMR 1417; Shahbaz v. The State 2016 SCMR 1763; Muhammad Javed v. The State 2016 SCMR 2021 and Muhammad Ismail and others v. The State 2017 SCMR 898 rel.

(b) Criminal trial---

----Abscondance--- Effect--- Fact of abscondance of accused can be used as a corroborative piece of evidence, which cannot be read in isolation but it has to be read along with substantive piece of evidence.

Asadullah v. Muhammad Ali PLD 1971 SC 541; Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373; Muhammad Sadiq v. Najeeb Ali 1995 SCMR 1632; Muhammad Khan v. State 1999 SCMR 1220; Gul Khan v. State 1999 SCMR 304; Muhammad Arshad v. Qasim Ali 1992 SCMR 814; Pir Badshah v. State 1985 SCMR 2070; Amir Gul v. State 1981 SCMR 182; Muhammad Farooq and another v. The State 2006 SCMR 1707; Nizam Khan and 2 others v. The State 1984 SCMR 1092 and Rohtas Khan v. The State 2010 SCMR 566 rel.

(c) Criminal trial---

----Benefit of doubt---Principle---For giving benefit of doubt, it is not necessary that there should be so many circumstances---If only a single circumstance creating reasonable doubt in the mind of prudent person is available then such benefit is 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.

Basharat Ullah Khan for Appellants.

Sajjad Hussain Bhatti, Deputy Prosecutor General for the State.

2021 Y L R 1394

[Lahore]

Before Mirza Viqas Rauf, J

ALAM SHER---Petitioner

Versus

YASIR NAWAZ and another---Respondents

Civil Revision No. 3229 of 2021, decided on 19th January, 2021.

Specific Relief Act (I of 1877)---

----Ss. 12 & 54---Transfer of Property Act (IV of 1882), S. 54---Limitation Act (IX of 1908), Art. 113---Civil Procedure Code (V of 1908), S. 115---Suit for specific performance of agreement to sell and injunction---Limitation---Sale on behalf of minor---Proof---Petitioner/ plaintiff sought specific performance of agreement to sell on the plea that owner of suit property was minor and his father entered into agreement to sell on his behalf---Trial Court and Lower Appellate Court dismissed the suit---Validity---Present was an oral sale therefore, petitioner/plaintiff was obliged to lead overwhelming and tangible evidence to prove the same but no concrete evidence was available to such effect---Payment of sale consideration was necessary corollary of a valid sale and vendee was obliged to prove the same through convincing and unimpeachable evidence, which was lacking---Payment of sale consideration was shrouded in mystery---Petitioner/plaintiff instituted suit while invoking second part of Art. 113 of Limitation Act, 1908, so he was obliged to explain delay of each and every day in filing suit but there was nothing on record to meet with the same and suit was barred by time---Concurrent findings of facts recorded by two Courts below were based on proper appraisal of evidence---None of the Courts below committed any illegality or material irregularity while dismissing suit of petitioner/plaintiff concurrently---Revisional jurisdiction had very limited scope and unless petitioner/plaintiff could establish that judgments assailed suffer with infirmities as hedged in S.115, C.P.C. he could not succeed---High Court in exercise of revisional jurisdiction declined to interfere in concurrent findings of facts by two Courts below as there was no illegality or material irregularity pointed out by petitioner/plaintiff--- Revision was dismissed, in circumstances.

Muhammad Zofigan v. Muhammad Khan and 49 others PLD 2004 Lah. 255; Manzoor Hussain and others v. Bhole Khan and others 1991 CLC 640; Muhammad Umar Khan v. Mst. Aziz Begum and another 2001 MLD 448 and Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1300 rel.

2021 Y L R 1445

[Lahore (Rawalpindi Bench)]

Before Muhammad Ameer Bhatti, J

AMIR KHAN---Petitioner

Versus

MUHAMMAD TAJ---Respondent Civil Revision No. 94 of 2012, decided on 4th October, 2016.

(a) Punjab Pre-emption Act (IX of 1991)---

----S.13---Suit for pre-emption---Scope---Petitioner assailed the dismissal of his suit for possession through pre-emption with the assertion that he had a superior right---Suit was concurrently dismissed---Validity---Petitioner had failed to establish that he was owner of an inch of land in the same khasra number wherefrom the respondent had purchased the land---Courts below had rightly reached at the conclusion that the petitioner had no preferential right---Revision petition was dismissed.

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

----Ss. 26-B & 31---Filing of list of witnesses---Summons to witness---Scope---Plaintiff's application for summoning production of Postman and Record Keeper along with record was dismissed by the Trial Court without any legal justification despite the fact that he had specifically incorporated the names of Postman and Record Keeper along with record in the list of witnesses to be summoned through Court and on many occasions the Court had ordered about their summoning but for unknown reasons the orders were not complied with---Counsel of plaintiff after producing the other witnesses had inadvertently made the statement for closing of evidence---Despite mistake of the counsel, the Court had to perform its duty when specifically, in the list of witnesses, the names of witnesses were incorporated, who were to be summoned through the Court.

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

----S. 96---Appeal from original decree---Interlocutory order--- Scope--- Not necessary to challenge every interim order in grounds of appeal but entire case including interim orders is reopened at the time of hearing appeal.

Mst. Khurshid Begum and others v. Ahmad Bakhsh and others PLD 1985 SC 405 and Muhammad Bashir v. Muhammad Hussain and 16 others 2009 SCMR 1256 rel.

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

----S. 96---Appeal from original decree---Interlocutory order---Scope---Appellate Court has been given full authority to examine each and every interim order as well as all proceedings conducted by the Trial Court as appeal is continuation of the suit.

Raja Maqbool Hussain for Petitioner.

2021 Y L R 1449

[Lahore]

Before Ch. Mushtaq Ahmad, J

MUHAMMAD NAWAZ---Petitioner

Versus

The STATE---Respondent Criminal Appeal No. 192-J of 2013, heard on 19th November, 2020.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Un-witnessed incident---Last seen evidence---Un-natural conduct---Scope---Accused was alleged to have murdered the minor son of complainant---Prosecution case mainly relied on last seen evidence as there was no eye-witness of the murder---Two of the prosecution witnesses had claimed that they had seen the deceased in the company of the accused and two unknown persons---Both the said witnesses in their cross-examination had stated that they did not go to accused person's house when they were searching for complainant's son, which conduct was not in line with the behaviour which should have been of a man of ordinary prudence in the given situation---Both the witnesses had contradicted each other on material points and had stated that they did not know the accused---Sickle was recovered on the indication of accused during the course of investigation---Sickle was shown as the weapon used for cutting jugular vein of the victim but the Medical Officer in his cross-examination had stated that the injury could not have been caused by sickle as its cut was irregular as opposed to regular cut on the neck of deceased---Prosecution had failed to prove the charge against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

Shahid Mahmood Baig and Kamran Javaid Malik, defence counsel for Appellant.

Muhammad Nawaz Shahid, Deputy Prosecutor General for the State.

Etbar Ahmad Khan for the Complainant.

2021 Y L R 1453

[Lahore (Rawalpindi Bench)]

Before Muhammad Tariq Abbasi, J

ADNAN ZULFIQAR---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, GUJAR KHAN and 2 others---Respondents

Writ Petitions Nos. 3066 of 2020 and 177 of 2021, heard on 3rd March, 2021.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched. & S.10---Dissolution of marriage on basis of Khula---Return of dower---Scope---Petitioner as well as respondent assailed findings of courts below whereby suit of wife to the extent of recovery of gold ornaments was dismissed and suit to the extent of recovery of whole deferred dower was decreed while dissolving the marriage on the basis of khula---Validity---Held, when admittedly the dower was prompt, then 25% of same should have been surrendered---Findings of Appellate Court holding wife entitled for whole of the settled dower could not be termed as justified---Petitioner (wife) was directed to surrender 25% of the dower---Petitioner had failed to rebut or contradict the reasoning of the Appellate Court towards her refused claim of gold ornaments---Constitutional petitions were disposed of accordingly.

Raja Saghir-ur-Rehman for Petitioner (in W.P. No. 3066 of 2020).

Khateeb Hussain for Petitioner (in W.P. No.177 of 2021).

2021 Y L R 1462

[Lahore (Rawalpindi Bench)]

Before Muhammad Ameer Bhatti and Ali Akbar Qureshi, JJ

SUHAIL JUTE MILLS---Appellant

Versus

GOVERNMENT OF PUNJAB and others---Respondents

I.C.A. No. 203 of 2015, decided on 24th April, 2018.

Law Reforms Ordinance (XII of 1972)---

----S. 3---Intra Court Appeal---Scope---Appellant assailed order passed by Single Judge of High Court whereby its constitutional petition was dismissed by holding that disputed question of fact regarding submission of document alleged by appellant and denied by the other side barred exercise of constitutional jurisdiction---Appellant's case was that it had supplied jute bags to the respondent at an agreed rate but at the time of disbursement of price, respondents made payment to the appellant at reduced rate on the ground that it had supplied bags to a Corporation at certain reduced rate---Validity---Requisite certificate was although furnished at later stage but it was part of the tender condition submitted by the appellant in response to the invitation made by the respondents---Respondents while deducting the excessive amount claimed by the appellant as compared to the said Corporation had not travelled beyond their limit prescribed in the terms of tender and action of respondents was within parameters of the terms of the tender; hence no interference was warranted---Appeal was dismissed.

Civil Appeal No.22-L of 2011 and C.M.A. No.2051-L of 2009 ref.

Malik Qamar Afzal for Appellant.

2021 Y L R 1501

[Lahore (Rawalpindi Bench)]

Before Muhammad Ameer Bhatti, J

GHULAM RABBANI---Petitioner

Versus

MEMBER JUDICIAL, BOARD OF REVENUE and others---Respondents

Writ Petition No. 3147 of 2011, decided on 4th October, 2016.

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

----S. 135---Application for partition---Co-sharer in khata, non-impleading of---Effect---Petitioner assailed orders passed by authorities whereby the respondents' application for partition was allowed without hearing the petitioner---Courts below had concurrently held that the petitioner did not have any land in the relevant khata---Validity---Petitioner had established from the revenue record that he was owner in the same khata and such an un-rebutted evidence was not taken into consideration---Even a single sentence was not mentioned in the impugned orders to discard such argument---Impugned orders were set aside with direction to re-adjudicate the application for partition---Constitutional petition was accepted, in circumstances.

(b) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Concurrent findings---Scope---Where misreading or non-reading floating on the surface of record is pointed out by any party, the same shall be annulled without considering the decision of the authorities even found concurrent.

Khalil Ahmad v. Abdul Jabbar Khan and others 2005 SCMR 911 rel.

Raja Arshad Hayat for Petitioner.

2021 Y L R 1514

[Lahore (Rawalpindi Bench)]

Before Syed Shahbaz Ali Rizvi and Sadiq Mahmud Khurram, JJ

SOHAIL ALMAS---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 647 of 2016, heard on 25th January, 2021.

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

----S. 9(c)--- Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Possession of narcotics---Withholding of best evidence---Scope---Allegation against accused was that the complainant, having spy information, got de-boarded the accused from a flight, got his baggage i.e. trolley bag off loaded, out of which eight kilograms of heroin was recovered among other articles---Baggage tag having been available on the trolley bag was not produced in evidence, which led the Court to draw an inference adverse to the prosecution under Art. 129(g) of Qanun-e-Shahadat, 1984---Closed-circuit television (CCTV) footage of the luggage booking, boarding card issuance counter or the departure lounge were not collected and secured by the investigating agency to produce the same in evidence to establish the fact that it was the accused who got the trolley bag booked with the airline---Report of Chemical Examiner although carried the names of tests applied yet he had not mentioned the test protocols applied in carrying out the required tests, which was against the mandate of R. 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001---Accused could not be convicted and sentenced only on the basis of oral assertions---Prosecution case was seriously doubtful---Appeal against conviction was allowed, in circumstances.

Khair ul Bashar v. The State 2019 SCMR 930 and The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 rel.

Abdul Wahid Qureshi for Appellant.

Saeed ur Rehman Khan, Special Prosecutor for ANF along with Arshad, A.S.I. for the State.

2021 Y L R 1525

[Lahore (Rawalpindi Bench)]

Before Muhammad Ameer Bhatti, J

Ch. BASHIR AHMAD---Petitioner

Versus

Ch. SHOUKAT AHMAD and others---Respondents

Civil Revision No. 1200 of 2010, heard on 20th September, 2016.

Contract---

----Landlord and tenant---Breach of contract---Compensation for loss or damage caused by breach of contract---Compensation for failure to discharge obligation created by contract---Suit for recovery of damages---Burden of proof---Scope---Landlords filed suit for recovery of price of articles which were removed by the tenant while handing over possession of the suit property---Trial court decreed the claim to a certain extent---Validity---Landlords had to first prove that at the time of handing over possession of the property on rent, said articles were installed and handed over to the tenant---Trial Court had erred in law while holding that the tenant had failed to prove that the articles belonged to him, hence, he had no right to remove the same and as such liable to pay price so that the landlords be compensated---Landlords had not alleged that at the time of handing over the possession of the suit property on rent to the tenant said articles were installed---Revision petition was allowed, concurrent findings of the courts below were set aside and the suit was dismissed, in circumstances.

Mirza Ibrar Ahmad Baig for Petitioner.

Ch. Muhammad Iqbal Tullah for Respondent No.1.

2021 Y L R 1550

[Lahore]

Before Rasaal Hasan Syed, J

FAHMEEDA YOUNAS through L.Rs.---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SHEIKHUPURA and 2 others---Respondents

Writ Petition No. 25342 of 2015, decided on 4th February, 2021.

Family Courts Act (XXXV of 1964)---

----S.5---Recovery of dowry articles---Parties were husband and wife inter se and the relationship ended in divorce---Suit for recovery of dowry articles filed by wife was decreed in her favour but Lower Appellate Court on the basis of "acknowledgment receipt" dismissed the suit---Validity---Suit was filed by wife and she was not shown to be a party in disputed document (acknowledgement receipt) nor a signatory thereto---Wife could not be denied right to recover dowry articles which were received at the house of her ex-husband---Family Court rightly declined to accept the document as a valid piece of evidence to deny relief to ex-husband while Lower Appellate Court fell in error in non-suiting wife on the basis of inadmissible evidence by misreading of record---High Court in exercise of Constitutional jurisdiction set aside judgment and decree passed by Lower Appellate Court and restored that of Family Court---Constitutional petition was allowed, in circumstances.

Dr. Major Abdul Ahad Khan through his Legal Representatives v. Muhammad Iqbal through his Legal Representatives PLD 1989 Kar. 102 ref.

Ghulam Rasool Chaudhary for Petitioner.

2021 Y L R 1569

[Lahore (Bahawalpur Bench)]

Before Sardar Ahmad Naeem and Muhammad Waheed Khan, JJ

NASEER AHMED---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 239/BWP and Murder Reference No. 34/BWP of 2016, heard on 11th February, 2021.

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

----Ss. 302(b) & 34---Qatl-i-amd and common intention---Appreciation of evidence--- Benefit of doubt---Contradiction in medical and ocular evidence---Contradictory statements---Acquittal of co-accused persons---Chance witnesses---Motive not proved---Recovery of weapon---Wilful absconsion, not proved---Scope---Accused was convicted for having murdered the complainant---Crime report was registered on the statement of deceased (injured at that time) who stated that he was going on a motorcycle to drop his daughter to Madrassa; that he was intercepted by accused along with others; that the accused gave kassi blow on his head whereas, the co-accused gave multiple club blows and that the incident had occurred in the backdrop of a previous grudge---Contents of FIR described that the alleged incident had taken place on

25-02-2012 whereas medical officer stated that he had attended the complainant on 24-02-2012---Daughter of complainant while narrating the incident stated that the accused persons pushed them as they were boarded on a motorcycle resultantly, they fell on the ground but such aspect of the case was not described in the FIR---Daughter of the complainant was not medically examined---Injuries attributed to co-accused persons were duly observed by the medical officer on the person of complainant but since the prosecution evidence was disbelieved to the extent of acquitted co-accused persons by the Trial Court, therefore, the same could not be relied upon without having independent and strong corroboratory evidence---Second eye-witness had not plausibly explained his presence at the place of occurrence---Prosecution had failed to prove the motive part of the incident---Weapon recovered from the possession of accused was not blood-stained---Wilful absconsion of accused was not proved through evidence---Appeal against conviction was allowed, in circumstances.

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 ref.

(b) Criminal trial---

----Recovery of weapon---Scope---When the ocular version of the prosecution is doubtful and unbelievable, the evidence of the recovery cannot be made basis to maintain the conviction of the accused.

Farooq Haider Malik for Appellant.

Nemo for the Complainant.

Najeeb Ullah Jatoi, Deputy Prosecutor General for the State.

2021 Y L R 1591

[Lahore]

Before Ch. Muhammad Iqbal, J

NAZAR MUHAMMAD---Petitioner

Versus

MUHAMMAD ABDULLAH and others---Respondents

Writ Petition No. 29107 of 2012, heard on 4th November, 2020.

Punjab Land Revenue Act (XVII of 1967)---

----S. 135---Constitution of Pakistan, Art. 199--- Constitutional petition---Application for partition---Scope of interference by High Court---Respondent filed application under S.135 of Punjab Land Revenue Act, 1967, for partition of joint khata before the Tehsildar/Assistant Collector-I---Tehsildar initiated ex-parte proceedings against the petitioner and others and accepted the application for partition as nobody had raised objection on the naqsha/mode of partition---Petitioner along with others filed application under S.12(2) read with O.IX, R.13, C.P.C., for setting aside the ex-parte order which was dismissed throughout---Validity---Tehsildar had discussed in detail the process of service upon the petitioner which was effected---Petitioner's share had already been given to him, as such, the petitioner had failed to show any illegality or irregularity while preparing the mode of partition of the joint khata---High Court in the absence of any patent illegality or irregularity could not interfere in the concurrent findings of revenue hierarchy in the constitutional jurisdiction and could not sit at the decisions of revenue authorities who were the best judges to ascertain the rights of the parties according to their respective ownership---Constitutional petition was dismissed.

Raza Khan through Legal Heirs and 3 others v. Member, Board of Revenue, N.W.F.P. Peshawar and others 1999 SCMR 873 and Muhammad Akram v. Member, Board of Revenue (Judicial-VII) and 8 others 2014 MLD 870 ref.

Malik Amjad Pervaiz for Petitioner.

Asif Mehmood Cheema, Additional Advocate General for Respondents.

Muhammad Mumtaz Afridi for Respondents Nos. 11, 13 to 15.

Abdul Shakoor Chaudhary for Respondents Nos.47 to 50.

2021 Y L R 1603

[Lahore (Rawalpindi Bench)]

Before Rasaal Hasan Syed, J

Mian ABID AZIZ and others---Appellants

Versus

AFTAB QADRI---Respondent

F.O.As. Nos. 92, 96 and 97 of 2018, heard on 16th February, 2021.

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

----Ss.17(8)& 17(9)---Eviction of tenant---Default in payment of monthly rent---Non-compliance of order of the Court made under S.17(8) of the Cantonments Rent Restriction Act, 1963 (the Act 1963) to deposit arrears as well as future monthly rent---Rent Controller struck off the right of defence on the application of landlord under S.17(9) of the Act 1963 and passed eviction order forthwith---Appellant/tenant contended that non-speaking order was passed by the Rent Controller without considering that they made rent deposits in advance---Respondent/landlord contended that appellant only made random payments and did not comply with the order of the Controller to deposit rent---Held, that appellant placed on record a certificate regarding deposit of rent which contained details of the rent deposited---Due consideration thereof revealed that the entries pertained to deposit of rent for almost five years and it appeared that the rent was deposited for every month---Multiple deposits were made in advance though the deposits could have been made before the 5th of the succeeding month---Application of respondent under S.17(9) of the Act, 1963, was vague, which did not specify the alleged late deposit on basis of which non-compliance of order was claimed and it was only asserted in said application that the order of deposit of rent had not complied with, without pointing out as to in which month the default was made or non-compliance of order was made---Rent Controller did not consider the contention/defence of appellant/tenant, whereas he was duty bound to first consider the mandate of S.17(8) of the Act, 1963 and also his own order for deposit of future rent and, thereafter, should have determined as to whether any late/short payment was made, and if so, for which month/ period---Rent Controller while passing impugned order did not consider that the rent actually deposited by the appellants was in advance for each month and , therefore, the deposit on 5th of each month in advance could not possibly entail the consequence of "willful default" unless it could be demonstrated that the rent deposited on the 5th of each calendar month was with regard to the rent of the previous month---Impugned order being perfunctory, vague and against the law, was not legally sustainable---High Court set aside impugned order and remanded the matter to Rent Controller to decide the same afresh---Appeal was disposed of accordingly.

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

----Ss. 17(8) & 17(9)---Punjab Urban Rent Restriction Ordinance (VI of 1959), S. 13(6)---Eviction of tenant---Payment of monthly rent---Due date---Scope---"Rent due" and "subsequently become due "---Scope---Non-compliance of order of the Court to deposit arrears as well as future monthly rent---Rent Controller struck off the right of defence of the tenant and passed eviction order forthwith---Contention/defence of the appellant/tenant was that he had made advance deposits of every month though he was required to deposit monthly rent before 5th day of each succeeding month---Held, that S.17(8) of the Cantonments Rent Restriction Act, 1963 stipulated that the Rent Controller shall direct the tenant to deposit all rent due from him before a specified date and also deposit rent regularly till final decision of the case, before the 5th of each month, the monthly rent which subsequently became due---Words "subsequently become due" were meaningful, as the rent became due on expiry of the month for it was payable which could be legally deposited before the 5th of next month---Rent for the specific month could be paid before the 15th of the next month---Under S.13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, ('the Ordinance 1959') Rent Controller was required to direct deposit of rent/future rent before the 15th of each month, so the deposit could be made for specific month before the 15th of next month---If the rent was tendered through money order for specific month and for the following month even on 11th of the next month, such tender amounted to deposit in performance of the obligation of the tenant under S.13(6) of the Ordinance, 1959---Tenant was required to pay the rent due in terms of the directions of the Court and not in advance---In the matter of deposit of rent in Court, the deposit of "rent due" would mean that the rent would become due on the expiry of the month and could be paid before the 15th of the succeeding month---Rent of a month became due on the expiry of month and, therefore, deposit was made before the 5th of the next month would legally be a proper deposit---High Court set aside impugned order of eviction of the appellant/tenant and remanded the matter to Rent Controller to decide the same afresh---Appeal was disposed of accordingly.

Mehboob Illahi v. Saqib Mehmood Riaz and others 1990 SCMR 1688 and Muhammad Naeem Abbasi v. Mst. Muhammad Jan 2008 MLD 1659 ref.

Muhammad Afzal Janjua for Appellants.

Rizwan Haider for Respondent.

2021 Y L R 1623

[Lahore]

Before Shehram Sarwar Ch. And Farooq Haider, JJ

NAZAR HAYAT---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No. 91-J and Murder Reference No. 58 of 2017, heard on 27th January, 2020.

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

----Ss. 302(b), 324, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Delayed post-mortem---Chance witnesses---Motive, a double-edged weapon---Acquittal of co-accused---Effect---Accused along with others was alleged to have murdered the brother of complainant---Post-mortem examination was allegedly conducted after four and half hours of the occurrence but the Medical report revealed that the rigor mortis had developed at the time of examination, therefore, at least 10/12 hours had elapsed between death and post-mortem examination---Eye-witnesses were chance witnesses as they had no house, land, place of their job at, near or around the place of occurrence---Motorbike on which the eye-witnesses were allegedly riding was not produced during investigation nor was it shown in the site plan---Motive was a double edged weapon and in particular facts and circumstances of the case, it could be considered as reason for false implication of the accused---Eye-witnesses had not been believed to the extent of co-accused as he was acquitted and the accused could not be convicted on the basis of same set of evidence---Prosecution had failed to prove its case against the accused, in circumstances---Appeal against conviction was allowed, in circumstances.

Munir Ahmad and another v. The State and others 2019 SCMR 79; Altaf Hussain v. The State 2019 SCMR 274; Notice to Police Constable Khizar Hayat son of Hadait Ulfah on account of his false statement: In the matter of Criminal Miscellaneous Application No.200 of 2019 in Criminal Appeal No.238-L of 2013 , decided on 4th March, 2019 PLD 2019 SC 527 and Mansab Ali v. The State 2019 SCMR 1306 ref.

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

----S. 302(b)--- Qatl-i-amd--- Medical evidence---Scope---Medical evidence is mere supportive/confirmatory type of evidence; it can tell about locale, nature, magnitude of injury and kind of weapon used for causing the injury but it cannot tell about identity of the assailant who caused the injury.

Sajjan Solangi v. The State 2019 SCMR 872 ref.

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

----S. 302(b)---Qatl-i-amd---Recovery of weapon---Negative report of Forensic Laboratory---Scope---Accused along with others was alleged to have murdered the brother of complainant and got recovered the crime weapon---Shotshell cases/empties were not found to be fired from the allegedly recovered gun pump action---Recovery of gun was held to be inconsequential, in circumstances.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), Ss. 77 & 87---Qatl-i-amd---Absconsion---Warrants to whom directed---Proclamation for person absconding---Appreciation of evidence---Accused along with others was alleged to have murdered the brother of complainant and absconded after commission of offence---Perusal of warrant of arrest revealed that it was not issued to any police officer for execution---Warrant of arrest did not carry any house number, street number and name of any mohalla; similarly, it was not mentioned in the proclamation that in how much period or till which date the accused had to surrender---Reports of Process Server on the warrant and proclamation did not contain name of any neighbourer or respectable of vicinity; therefore, both warrant and proclamation were defective---No corroboration could be sought from such absconsion---Appeal against conviction was allowed, in circumstances.

Muhammad Arif v. The State 2019 SCMR 631 ref.

(e) Criminal trial---

----Absconsion---Scope---Absconsion is not proof of the charge.

Wajeeh-u1-Hassan v. The State 2019 SCMR 1994 ref.

(f) Criminal trial---

----Absconsion--- Scope--- Absconsion is of no help to the case of prosecution when ocular account has been disbelieved.

Rohtas Khan v. The State 2010 SCMR 566 ref.

Nasir Mehboob Tiwana and Ms. Sheeba Qaiser for Appellant.

Rai Akhtar Hussain, Deputy Prosecutor General for the State.

Farrukh Gulzar Awan for the Complainant.

2021 Y L R 1691

[Lahore]

Before Shahid Bilal Hassan, J

MUHAMMAD ANAR TARAR---Petitioner

Versus

PROVINCE OF PUNJAB through District Officer (Revenue) and others---Respondents

Civil Revision No. 2745 of 2010, decided on 10th August, 2020.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)---

----Ss. 30(2) & 36---Specific Relief Act (I of 1877), S.42---Suit for declaration---Resumption of land after conferment of proprietary rights--- Jurisdiction of Member (Colonies), Board of Revenue ('the Member')--- Scope--- Plaintiff instituted civil suit to challenge order passed by the Member under S.30(2) of the Colonization of Government Lands Act, 1912 ('the Act 1912') to resume the land-in-question---Both the Courts below dismissed the suit of plaintiff---Contention of petitioner/plaintiff was that the Member passed the order without jurisdiction as the matter-in-question actually related to tenancy rights/fair price assessment---Validity---Plea of the petitioner had itself been negated/ denuded by the exhibited registered sale deed, which showed that the agricultural land in the canal colony was sold out, so the Member (Colonies) was well within jurisdiction to deal with the matter and passed appropriate order under S.30(2) of the Act, 1912---Both the Courts below, while considering the facts arising out from the record, had rightly decided the issues of jurisdiction of the Member and objection/plea of the petitioner had no force---Record revealed that during proceedings before the Trial Court, the brother of the petitioner was Member of Provincial Assembly (MPA) of the ruling political party when the land-in-question was allegedly sold to him through private treaty---Said transaction had rightly been concluded as having been obtained through influence of the ruling political party---When the position was such that the disputed land was obtained through fraud and pressure, the Member (Colonies) was well within jurisdiction to cancel the same and that sale through private treaty under the influence of the politicians was to be discouraged---No illegality or infirmity having been found in the impugned decrees and judgments passed by both the Courts below---Revision petition was dismissed, in circumstances.

Mian Asghar Ali v. Province of Punjab through District Collector and others 2006 SCMR 936 and Mian Asghar Ali v. Government of Punjab through Secretary (Colonies) BOR, Lahore and others 2017 SCMR 118 ref.

Muhammad Tamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698; Hamid Husain v. Government of West Pakistan and others 1974 SCMR 356; Haji Muhammad Khan and 2 others v. Islamic Republic of Pakistan through Pakistan Railway and 2 others 1992 SCMR 2439; Mst. Kamina and another v. Al-Amin Goods Transport Agency through L.Rs. and 2 others 1992 SCMR 1715; Province of Punjab through Chief Secretary and 5 others v. Malik Ibrahim and Sons and another 2000 SCMR 1172; Qasim Ali v. Rehmatullah 2005 SCMR 1926; Gul Kanjeer Khan and others v. Subedar Umer Khatab and others 2007 SCMR 800; Muhammad Nazir Khan v. Ahmad and 2 others 2008 SCMR 521; Muhammad Sadiq and others v. Barkat Ali and 4 others 1990 CLC 533; Muhammad Liaquat and 5 others v. Member, Board of Revenue (Colonies), Punjab, Lahore and 3 others 2000 CLC 953; Province of the Punjab through Collector and 2 others v. Nazir Ahmad and 9 others 2004 YLR 1650 and Province of Punjab through Collector and 4 others v. Haji Wali Muhammad and 4 others 2004 MLD 441 distinguished.

(b) Colonization of Government Lands (Punjab) Act (V of 1912)---

----Ss. 36 & 30(2)---Specific Relief Act (I of 1877), S.42---Suit for declaration---Resumption of land after conferment of proprietary rights---Jurisdiction of Civil Court---Scope---Plaintiff instituted civil suit to challenge order passed by the Member (Colonies), Board of Revenue ('the Member') under S.30(2) of the Colonization of Government Lands Act, 1912 ('the Act 1912' ) to resume the land-in-question---Both the Courts below dismissed suit of the plaintiff---Contention of petitioner/plaintiff was that the Member (Colonies) passed the order without jurisdiction as the matter-in-question actually related to tenancy rights/fair price assessment---Validity---No malice, mala fide or ill-will on the part of the Member (Colonies) while passing the order against the petitioner, had been pleaded or brought on record---Section 36 of the Colonization of Government Lands Act, 1912, barred jurisdiction of Civil Court to make any interference in such like orders, which had been passed with jurisdiction---Revision petition was dismissed, in circumstances.

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

----S. 42---Colonization of Government Lands (Punjab) Act (V of 1912), Ss.30(2) & 36---Resumption of land after conferment of proprietary rights---Suit for declaration without seeking possession--- Maintainability--- Plaintiff instituted suit to challenge order passed by the Member (Colonies), Board of Revenue, under S.30(2) of the Colonization of Government Lands (Punjab) Act, 1912 ('the Act 1912') to resume the land-in-question---Held, that the petitioner/plaintiff did not seek possession of the land-in-question and only sought declaratory decree as it was established on record (through the document exhibited by the defendants) that the possession of the land-in-question was of provincial government, so the suit was bad and was not maintainable as per mandate of S.42 of the Specific Relief Act, 1877---Revision petition dismissed, in circumstances.

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

----S. 115---Revisional jurisdiction of High Court--- Scope--- Scope of interference with concurrent findings of facts by High Court in exercise of revisional jurisdiction was very narrow---While examining the legality of judgment and decree in exercise of powers under S.115, Civil Procedure Code, 1908, High Court, on reappraisal of evidence, could not upset findings of facts, howsoever erroneous such findings were---High Court could not take a different view of evidence, especially when there was no misreading and non-reading of evidence on record.

Muhammad Feroze and others v. Muhammad Jamaat Ali 2006 SCMR 1304; Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469; Cantonment Board through Executive Officer, Cantt. Board Rawalpindi v. Ikhlaq Ahmed and others 2014 SCMR 161 and Muhammad Farid Khan v. Muhammad Ibrahim and others 2017 SCMR 679 ref.

Allah Bakhsh Gondal for Petitioner.

2021 Y L R 1731

[Lahore]

Before Masud Abid Naqvi, J

SADAF YOUNAS---Petitioner

Versus

MUHAMMAD USMAN FAROOQ---Respondent

Civil Revision No. 78215 of 2019, decided on 9th March, 2021.

Civil Procedure Code (V of 1908)---

----O. IX, R. 13---Ex-parte judgment---Knowledge---Proof---Respondent-plaintiff filed suit for recovery of gold ornaments which was decreed in his favour ex parte--- Petitioner-defendant sought setting aside of ex-parte judgment and decree passed against her---Validity---Petitioner-defendant was well aware of institution as well as decree passed in suit but she did not intentionally appear in Court---Petitioner-defendant failed to substantiate allegation of fraud---Mere allegation not supported by any material would not invariably warrant inquiry or investigation---All such facts negated the claim/ground as written in application for setting aside ex parte orders---Plea raised by petitioner-defendant before High Court had no force---Petitioner-defendant did not point out any plausible ground due to which he was seeking setting aside of orders in question---Judgment and decree was passed after proper evaluating facts of case and keeping in view the settled law---High Court declined to set aside ex-parte judgment and decree passed against petitioner-defendant as there was no infirmity, legal or factual---Revision was dismissed in circumstances.

Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212 rel.

Malik Shahbaz Ahmad for Petitioner/Defendant.

2021 Y L R 1736

[Lahore (Bahawalpur Bench)]

Before Muhammad Waheed Khan, J

MUHAMMAD TANVEER---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 77-B of 2021, decided on 19th January, 2021.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S. 377---Un-natural offence---Pre-arrest bail, grant of---Scope---Delayed FIR---Contradiction in ocular and medical evidence---Completion of investigation---Scope---Accused sought pre-arrest bail in an FIR registered against him wherein serious allegation of sexual assault and committing offence of sodomy was levelled against him by the mother of victim---Matter was reported to the police with delay of two days without proper explanation---Medico-legal certificate mentioned no date and time of medical examination of victim---No tears, lacerations, bruises, abrasion, swellings, hyperemia at the private parts and around the private parts were observed---No seminal material was found on the items sent to the Medical Officer---Forensic report did not verify the allegation of sodomy against the accused---Investigating Officer submitted that as the act of sodomy was not established during the course of investigation, so, the offence under S.377, P.P.C. was converted into S.377-B, P.P.C., but when he was confronted regarding the availability of any evidence in that regard, the answer was in the negative---Investigation had already been completed, meaning thereby that handing over the custody of accused to the police was neither likely to serve any useful purpose nor it seemed justified---Petition for grant of pre-arrest bail was allowed, in circumstances.

Malik Muhammad Aslam for Petitioner along with Petitioner.

Javaid Iqbal Bhaaya, ADPP for the State.

Maher Ahmad Sher Kathia for the Complainant.

2021 Y L R 1776

[Lahore (Rawalpindi Bench)]

Before Muhammad Ameer Bhatti, J

Mst. SAFEENA SHAHEEN---Petitioner

Versus

MUHAMMAD AKHTAR---Respondent

Civil Revision No. 934 of 2011, decided on 20th September, 2016.

Punjab Pre-emption Act (IX of 1991)---

----Ss. 13, 30 & 24---Suit for pre-emption---Non-deposit of sale price and requisite court-fee---Non-production of postman---Effect---Plaintiff assailed the concurrent dismissal of her suit for pre-emption---Validity---Suit was dismissed with the observation that it was barred by law being violative of S. 30 of the Punjab Pre-emption Act, 1991; that order for depositing 1/3rd of the sale price as well as requisite court fee was not complied with and that postman was not produced---Courts below had concurrently decided the case against the plaintiff after proper appreciation of evidence, yet, in the interest of justice, material on record as well as evidence on record was re-examined but no illegality or infirmity was found in the impugned judgments---Revision petition was dismissed.

Allah Ditta through L.Rs. and others v. Muhammad Anar 2013 SCMR 866 rel.

2021 Y L R 1819

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

Rao IMRAN NASIR---Petitioner

Versus

DEFENCE HOUSING AUTHORITY, LAHORE and others---Respondents

Writ Petition No. 8481 of 2020, decided on 30th April, 2021.

Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Determination of disputed questions of fact---Scope---Question before High Court related to rescission/termination of contract between a contractor and a Housing Authority (HA); and controversy related to whether petitioner was authorized to enter into contract on behalf of entity that was awarded the contract---Held, that disputed questions of fact were involved in the matter which required recording of evidence and could not be resolved in Constitutional jurisdiction of High Court and parties ought to either invoke jurisdiction of Civil Court or resort to dispute resolution provided by contract itself---Constitutional petition, being not maintainable, was dismissed, in circumstances.

Khan Iftikhar Hussain Khan of Mamdot (Represented by 6 heirs) v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1971 SC 550 rel.

Syed Athar Hassan Shah Bukhari, Syed Muzamil Hassan Shah Bukhari for Petitioner along with Mudassar Altaf Qureshi.

Shehzada Mazhar, Jawad Khan Lodhi and Syed Samir Sohail for Respondents Nos. 1 and 2.

Muhammad Abid Hussain Bhutta for Respondent (in C.M.No. 865 of 2021).

2021 Y L R 1821

[Lahore (Multan Bench)]

Before Abid Aziz Sheikh and Ch. Muhammad Iqbal, JJ

MULTAN ELECTRIC POWER COMPANY LIMITED (MEPCO) through Chief Engineer---Appellant

Versus

AKAASH JIBRAEEL and another---Respondents

I.C.A. No. 250 of 2020 in Writ Petition No. 14486 of 2020, heard on 10th February, 2021.

Punjab Private Housing Schemes and Land Sub-Division Rules, 2010---

----R. 30---Multan Electric Power Company Office Order dated 7-11-2019---Electrification of private housing scheme---"No Objection Certificate" from Development Authority---Appellant-Electric company demanded "No Objection Certificate" issued by Development Authority, from respondents who were developers of private housing schemes---Validity---Office Order of Multan Electric Power Company dated 7-11-2019, Standards and Criteria of Water and Power Development Authority dated 26-10-1993 and Rules, specifically provided for approval of respective development authority for electrification of housing schemes---Purpose of such prior approval was to protect interest of general public and to ensure that housing schemes were duly approved before they would apply for electrification and offer plots to public at large---Division Bench of High Court set aside judgment passed by Single Judge of High Court as appellant-company could not be directed not to demand "No Objection Certificate" from development authorities---Such direction to appellant-company amounted to direct public functionaries to act in derogation of applicable rules and policy---Intra Court Appeal was allowed, in circumstances.

Messrs Power Construction Corporation of China Ltd. through Authorized Representative v. Pakistan Water and Power Development Authority through Chairman WAPDA and 2 others PLD 2017 SC 83; Chief Executive GEPCO and 3 others v. Asghar Ali Rana 2018 YLR 1391; Government of Sindh through the Chief Secretary and others v. Khalil Ahmed and others 1994 SCMR 782; The Chairman, East Pakistan Railway Board, Chttagong and others v. Abdul Majid Sardar, Ticket Collector, Pakistan PLD 1965 SC 725; Lahore Improvement Trust, Lahore through its Chairman v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others PLD 1971 SC 811; Zarai Taraqiati Bank Limited and others v. Said Rehman and others 2013 SCMR 642; Secretary, Government of Punjab and others v. Khalid Hussain Hamdani and 2 others 2013 SCMR 817; Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132; Muhammad Afsar v. Malik Muhammad Farooq 2012 SCMR 274; Raja Mujahid Muzaffar and others v. Federation of Pakistan and others 2012 SCMR 1651; Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997; Suo Motu case In the matter of (Violation of Public Procurement Rules, 2004) PLD 2011 SC 927 and Tariq Aziz ud Din and others 2010 SCMR 1301 rel.

Ch. Saleem Akhtar Warraich, Amer Aziz Qazi, Sajjad Khan Malazai, Abdul Sattar Malik, Malik Murid Hussain Mukowal and Abdul Sattar, Jamshed Ali Niazi, Director Legal, MEPCO for Appellant.

Rao Muhammad Iqbal, Qazi M. Waseem Abbas, Rashid Bashir Khan, Imran Ahmad Jangla, Bilal Amin, Ch. Muhammad Bakhsh Mangat, Muhammad Yousaf Zubair, Muhammad Imran Hameed Sindhu, Muhammad Ashraf Qureshi, Shahzad Saleem Khan Baloch, Faisal Shahzad Awan, Khawaja Qaiser Butt, Rana Muhammad Azhar Iqbal and Ch. Khalid Mahmood Arain for Respondents.

2021 Y L R 1839

[Lahore]

Before Muhammad Tariq Abbasi, J

Mirza ARSHAD MEHMOOD---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No. 53210 of 2020, heard on 13th January, 2021.

Criminal Procedure Code (V of 1898)---

----S. 408---Penal Code (XLV of 1860), S.489-F---Dishonoring of Bank cheque---Appeal, restoration of---Accused was convicted by Trial Court for issuing a cheque which was dishonored on presentation and he was sentenced to simple imprisonment for three years---Appeal filed by accused was dismissed by Lower Appellate Court for non-prosecution---Validity---Nothing was available on record to suggest that due to absence of accused, his bail bonds were cancelled and to ensure his attendance any process was issued---Appeal was suddenly dismissed due to non-prosecution and perpetual warrants of arrest were issued against accused---Such order passed by Lower Appellate Court was neither justified nor valid---Lower Appellate Court could not dismiss appeal against conviction due to non-prosecution---Alleged conduct of accused had disentitled him a right of audience before Court but the Court was to decide the matter on merits while perusing available record---High Court directed the accused to surrender before Lower Appellate Court and seek resurrection of his appeal---High Court directed Lower Appellate Court to decide the appeal on merits---Revision was dismissed accordingly.

Zahid Hussain v. The State and others 2011 PCr.LJ 344; Muhammad Bakhsh v. The State 1986 SCMR 59; Muhammad Ashiq Faqir v. The State PLD 1970 SC 177 and Ikramullah and others v. The State 2015 SCMR 1002 rel.

Ali Sufyan Faiz for Petitioner.

Dr. Muhammad Anwer Khan Gondal, Additional Prosecutor General along with Amin S.I. for the State.

2021 Y L R 1870

[Lahore (Rawalpindi Bench)]

Before Sadaqat Ali Khan and Sadiq Mahmud Khurram, JJ

QAMAR SULTAN---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No. 1098 and Murder Reference No. 102 of 2017, heard on 16th September, 2020.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Non-justification for the presence of witnesses at the place of occurrence---Chance witnesses---Scope---Accused was charged for committing murder of brother of the complainant by firing---Motive behind the occurrence was a quarrel between deceased and accused---Ocular account of the incident had been furnished by brother of deceased/complainant and his cousin/witness---Admittedly, said witnesses were not the residents of the place of occurrence, thus, they were chance witnesses---Motorcycle was not even produced by the witnesses during the investigation of the case so as to establish the fact asserted by them that the deceased and complainant had indeed arrived at the place of occurrence on a motorcycle---Failure of the prosecution to produce the motorcycle under the use of the deceased and complainant reflected poorly on the prosecution case---No explanation had been furnished as to how the accused came to know about the travelling plans of the deceased and his sudden stay at the place of occurrence which had been brought upon by a phone call received by complainant---Prosecution witnesses had failed to establish the reason for their presence at the place of occurrence at the time of occurrence---Alleged eye-witnesses were not mentioned either in column No.4 or page 4 of the inquest report as being the ones who were present at the time of preparation of the said inquest report by the Investigating Officer---Said witnesses were also not the ones who had identified the dead body of the deceased at the time of the post-mortem report---All those omissions were conspicuous by their absence---In absence of physical proof or the reason for the presence of the witnesses at the prime scene, the same could not be relied upon---Post-mortem report showed that mouth of the deceased was opened, which clearly showed that the dead body was not attended to by his brother and cousin as claimed---If the witnesses were present then at least after the death, as was a consistent practise of such close relatives, they would have closed mouth of the deceased on his expiry, thus, the open mouth of the deceased forced a hostile interpretation against the prosecution's version regarding the presence of the witnesses at the place and time of occurrence---Said fact by itself indicated that none of such persons was present with the deceased till his death---If the complainant had been present then he would not have been spared as the number of injuries on the person of the deceased showed the degree of venom and design the killer had for the deceased---Blessing complainant with such incredible consideration and showing him such favour was implausible and opposed to the natural behaviour of the accused---Appeal against conviction was allowed, in circumstances.

Muhammad Rafiq v. State 2014 SCMR 1698; Usman alias Kaloo v. State 2017 SCMR 622; Nasrullah alias Nasro v. The State 2017 SCMR 724; Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068; Tariq Mehmood v. The State and others 2019 SCMR 1170; Rohtas Khan v. The State 2010 SCMR 566; Muhammad Farooq and another v. The Stale 2006 SCMR 1707 and Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Defective investigation--- Scope--- Accused was charged for committing murder of brother of the complainant by firing---Record showed that as many as nine shops had been identified at the place of occurrence besides the houses---None of those who had their residences or shops at the place of occurrence appeared either during the investigation of the case or before the Trial Court in support of the prosecution case---Investigating Officer was under a binding duty to collect evidence and his failure had to be taken as a circumstance belying the prosecution case---Purpose of the trial was the discovery of truth---Prosecution case suffered from inherent defects which were irreconcilable---Appeal against conviction was allowed, in circumstances.

Nadeem alias Nanha alias Billa Sher v. The State 2010 SCMR 949 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of three and half hours in recording the statement for lodging the FIR---Scope---Accused was charged for committing murder of brother of the complainant by firing---Record showed that the oral statement of complainant was recorded by the Investigating Officer of the case after more than three and half hours of the occurrence---No reason, much less plausible, had been given by the prosecution at any stage for such deferral in reporting the matter to the police---Fact remained that police station was at a distance of only twenty three kilometres still no effort was made to report the matter to the police---Prosecution case was that immediately after the occurrence the then injured later deceased was taken to the hospital within no time and he died on his way to the hospital---Despite the claim that deceased had died prior to reaching the hospital still the oral statement of complainant was recorded at the hospital whereas there was apparently no reason for the witnesses to be present at the hospital as the deceased had already died on his way---Even after the death of deceased, complainant or any other witness did not make any effort to report the matter---Investigating Officer of the case on his own reached at the hospital after receiving the information of the occurrence and recorded the oral statement of complainant at the hospital at 1.00 p.m. and subsequently the formal FIR was registered at the police station at 2.15 p.m.---Complainant waited for the arrival of the police at the hospital and did not take any step to report the matter to the police for so many hours even when according to the prosecution case itself the deceased had already died on his way to the hospital---Some plausible reason must be available for the failure of the complainant of not reporting the matter to the police even after the death of the deceased, however, none was available and doubts had arisen and inference against the prosecution had to be drawn in that regard---Inference could be drawn from the circumstances and the statements of the witnesses that it was only after consultation and concert the oral statement of the complainant was prepared and the same was neither prompt nor spontaneous---No corroboration of the prosecution evidence could be made from the said oral statement---Appeal against conviction was allowed, in circumstances.

Muhammad Ashraf Javeed and another v. Muhammad Umar and others 2017 SCMR 199 and Zafar v. The State and others 2018 SCMR 326 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of 6-8 hours in conducting the post-mortem---Scope---Accused was charged for committing murder of brother of the complainant by firing---Medical Officer, who conducted the post-mortem examination of the dead body of deceased, opined about the probable duration of time between death and post mortem as 6-8 hours---Such delay was reflective of the absence of witnesses and the sole purpose of causing such delay was to procure the presence of witnesses and to further advance a narrative to involve any person---Appeal against conviction was allowed, in circumstances.

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.

(e) 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 brother of the complainant by firing---Motive behind the occurrence was a quarrel between deceased and accused---Record showed that the motive of the occurrence, given in the oral statement of the complainant, was that the accused nursed a grudge against the deceased regarding the lodging of FIR against the accused and the arrest of the accused during the investigation of the said FIR, however, while appearing as a witness before the Trial Court, complainant did not reproduce any details of the said motive which were mentioned in the written application and made a very non-descriptive statement in that regard---Even the number of the FIR, which was allegedly got lodged against the accused, was not mentioned by the prosecution witnesses and also the date of the said alleged episode of motive was not mentioned---None of the other witnesses produced before the Trial Court by the prosecution gave any evidence regarding the motive of the occurrence---Furthermore, sister of complainant, who had allegedly been injured by the accused prior to the occurrence, did not appear either before the Investigating Officer during the investigation of the case or before the Trial Court so as to support the motive of the occurrence asserted by complainant---Haunting silence was shown with regard to the motive alleged by the prosecution---Lack of evidence in that regard established that there was no dispute which could have triggered the happening of that incident at the time of its occurring---Neither during investigation of the case or the trial, no documentary evidence was produced to support the motive of the occurrence---Failure of the prosecution to produce any documentary evidence in support of the motive showed that the accused had no motive to commit the occurrence---Circumstances established that the prosecution remained unable to establish any motive---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---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.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of crime weapon and empties---Scope---Accused was charged for committing murder of brother of the complainant by firing---In the present case, the prosecution had relied upon the recovery of the pistol from the accused---Report of Forensic Science Agency revealed that none were found fired by the pistol, in that manner, the report of Forensic Science Agency supported the plea of the accused that he had been falsely involved in the occurrence and did not further the case of the prosecution in any manner---Appeal against conviction was allowed, in circumstances.

(h) Criminal trial---

----Abscondence---Scope---Abscondence of an accused can be used as a corroborative piece of evidence, which can not be read in isolation but it has to be read along with substantive piece of evidence.

Asadullah v. Muhammad Ali PLD 1971 SC 541; Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373; Muhammad Sadiq v. Najeeb Ali 1995 SCMR 1632; Muhammad Khan v. State 1999 SCMR 1220; Gul Khan v. State 1999 SCMR 304; Muhammad Arshad v. Qasim Ali 1992 SCMR 814; Pir Badshah v. State 1985 SCMR 2070; Amir Gul v. State 1981 SCMR 182; Muhammad Farooq and another v. The State 2006 SCMR 1707; Nizam Khan and 2 others v. The State 1984 SCMR 1092 and Rohtas Khan v. The State 2010 SCMR 566 rel.

(i) Criminal trial---

----Medical evidence---Scope---Medical evidence by its nature and character cannot recognize a culprit in case of an unobserved incidence.

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

(j) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance creats reasonable doubt in the mind of a prudent person then its benefit will 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.

Malik Shoukat Hayat, (Defence Counsel appointed on State expense.) for Appellant.

Sajjad Hussain Bhatti, Deputy Prosecutor General for the State.

2021 Y L R 1915

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

SHAHIDA ADNAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No. 3312 of 2020, decided on 1st June, 2021.

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

----S. 25---Custody of minor---Visitation right---Scope---Petitioner/mother was aggrieved of issuance of a schedule of meeting of the minor with her father---Contention of petitioner was that the minor had no attachment with her father and that the father did not regularly maintain the minor---Validity---Father could not be denied the right of access to his minor daughter nor would he be considered an alien/enemy to her---Minor not only needed love, affection, care and attention of a mother but also the company and guiding hand of father---Negating the father of his right to meet his daughter would lead to emotional deprivation---Constitutional petition was dismissed.

Mst. Madiha Younus v. Imran Ahmed 2018 SCMR 1991 ref.

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

----S. 25---Custody of minor---Scope---Paramount consideration in the matter of custody of minor is the welfare of minor.

Ms. Farhana Qamar Rana for Petitioners.

Fahad Ahmad Siddiqui for Respondents.

2021 Y L R 1933

[Lahore]

Before Malik Shahzad Ahmad Khan, J

NASIR ABBAS and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 257189-J of 2018, heard on 11th February, 2021.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of two hours and forty five minutes in lodging the FIR---Effect---Prosecution case was that the accused/wife of the deceased and her paramour committed the murder of son of the complainant---Record showed that the occurrence in the case took place on 07.05.2017 at 08:30 p.m.---Relevant column of the FIR showed that the FIR was lodged on 07.05.2017 at 11.15 p.m., however, it was noteworthy that post-mortem examination on the dead body of the deceased was conducted with the delay of twelve hours from the time of alleged occurrence---Medical Officer stated during his examination-in-chief that the dead body was received in the dead house on 07.05.2017 at 11.00 p.m. and he received police papers on 08.05.2017 at 07.45 a.m., under the circumstances, it was evident that there was no delay on the part of the Medical Officer to conduct post-mortem examination on the dead-body of the deceased because the police papers were handed over to him with a considerable delay of about eleven hours from the time of occurrence---Said delay in conducting the post-mortem examination was suggestive of the fact that no eye-witness was present at the spot at the relevant time and the said delay had been consumed in procuring the attendance of eye-witnesses---Said delay of twelve hours in conducting post-mortem examination on the dead body of the deceased clearly showed that the FIR was not lodged at the given time---Said delay coupled with other facts had created doubt in the prosecution story---Appeal against conviction was allowed, in circumstances.

Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327; Muhammad Ilyas v. Muhammad Abid alias Billa and others 2017 SCMR 54; Zafar v. The State and others 2018 SCMR 326; Muhammad Ashraf v. The State 2012 SCMR 419 and Irshad Ahmed v. The State 2011 SCMR 1190 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Non-availability of justification for the presence of eye-witnesses at the spot--- Chance witnesses--- Scope---Prosecution case was that the accused/wife of the deceased and her paramour committed the murder of son of the complainant---Motive behind the occurrence was that the wife of the deceased had developed illicit relations with co-accused, due to which a dispute arose between deceased and his wife/accused and because of the said grudge, accused persons committed the murder of the deceased---Ocular account of the prosecution had been furnished by complainant/father and brother of the deceased---Occurrence took place in the house of lady accused, who was wife of the deceased---Eye-witnesses were residing 35-kilometres away from the place of occurrence---Eye-witnesses being residents of a different city were chance witnesses because in the normal course of nature, they were supposed to be present in their house situated 35-kilometers away from the spot. where the occurrence took place---In order to justify their presence at the spot, both the eye-witnesses stated that on the day of occurrence, deceased made a phone call to his father/complainant, whereupon eye-witnesses came to the house, where the occurrence took place, however, it was noteworthy that the prosecution evidence in that respect was self-contradictory because complainant stated in his examination-in-chief that he received telephone call from his son/deceased on the day of occurrence whereupon he along with other witnesses reached at the spot and witnessed the occurrence but during his cross-examination, he stated that deceased made telephone call two days prior to the occurrence---Neither any telephone number of the complainant nor any telephone number of deceased had been brought on the record during entire prosecution evidence---No call data of the telephone numbers of the complainant and the deceased had been produced in prosecution evidence to establish the reason of presence of prosecution eye-witnesses at the spot at the time of occurrence---According to the prosecution's own case, deceased contracted love marriage with accused without the consent of the complainant party, due to which the complainant party was unhappy with deceased---Evidently, the complainant party was unhappy with deceased, who was living in the house of his mother-in-law, therefore, it was mandatory for the prosecution to establish through any independent evidence like call data of phone numbers of the complainant and deceased that in fact any call was received by the complainant from the deceased on the day of occurrence to justify the reason of presence of the prosecution eye-witnesses at the time of occurrence in a different city but no such evidence had been produced by the prosecution, therefore, the prosecution eye-witnesses were chance witnesses and they could not justify their presence at the spot at the relevant time---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Contradictions in statements of eye-witnesses---Effect---Prosecution case was that the accused/wife of the deceased and her paramour committed the murder of son of the complainant---Record showed that there were material contradictions in the statements of the prosecution eye-witnesses---Complainant stated that mother of lady accused was living in the house, where the occurrence took place but she was not present in the said house at the time of occurrence, whereas brother of deceased/eye-witness stated that mother of lady accused was present in the house at the time of occurrence---According to prosecution case co-accused was holding a "Churri" in his hand at the time of occurrence but both the accused committed murder of deceased with the help of 'Roras'(pieces of bricks)---Circumstances suggested that it was not understandable that if co-accused was carrying a "Churri"at the time of occurrence then as to why he did not use the said Churri"and instead committed the murder of deceased with the help of a 'Rora'(piece of brick)---As per prosecution case co-accused merely put the"Churri" on the neck of deceased and lady accused inflicted blows of 'Roras' (pieces of bricks) on the head of deceased and thereafter co-accused took a 'Rora' (piece of brick) from lady accused and inflicted a blow on the head of deceased---"Churri'" was not used by accused persons to commit the occurrence--- Complainant party comprised of four adult male members including deceased, whereas the accused party comprised of only two persons out of whom one was a female---Eye-witness stated during his cross-examination that the accused persons threw away "Churri" and 'Rora' (piece of brick) on the spot, which were later on taken into possession by the police from the place of occurrence---No allegation in the FIR or in the statement of complainant that there were two 'Churries', one in the hand of co-accused and the other beneath the bed of deceased as stated during his cross-examination by other eye-witness---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Un-natural conduct of eye-witnesses---Scope---Prosecution case was that the accused/ wife of the deceased and her paramour committed the murder of son of the complainant---Evidence of eye-witness revealed that 'Churri' and 'Rora' (piece of brick), which were statedly in possession of the accused persons were thrown at the spot---Meaning thereby that the accused persons became empty handed after throwing their weapons of offence at the spot---If the accused persons threw away 'Churri' and 'Rora' (piece of brick) at the spot, then why the complainant party, which comprised of three male adult members at that time, did not try to apprehend the accused persons---Even one of the accused being a female was not apprehended at the spot by the prosecution eye-witnesses----According to the post-mortem report of the deceased, there were as many as thirteen (13) injuries on his body---All the said injuries were caused by blunt weapon---Infliction of large number of injuries on the deceased must have consumed reasonable time but the prosecution eye-witnesses neither tried to rescue their real son/brother at the time of occurrence nor they tried to apprehend the accused persons even when they threw away "Churri" and 'Rora' (piece of brick) at the spot and they became empty handed---Prosecution witnesses had seen the entire occurrence like silent spectators---Said conduct of the prosecution eye-witnesses was highly un-natural, therefore, their evidence was not worthy of reliance---Appeal against conviction was allowed, in circumstances.

Liaquat Ali v. The State 2008 SCMR 95; Pathan v. The State 2015 SCMR 315 and Zafar v. The State and others 2018 SCMR 326 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Weapons of offence were recovered from the accused persons---Reliance---Scope---Prosecution case was that the accused/wife of the deceased and her paramour committed the murder of son of the complainant---Record showed that the prosecution evidence against the accused persons regarding recoveries of 'Churri' and 'Rora'(piece of brick) from accused persons was also highly contradictory and unreliable---Investigating Officer stated that the blood stained 'Rora' (piece of brick) was recovered on the pointation of lady accused whereas Churri and 'Rora' (piece of brick) were recovered on the pointation of co-accused---According to the statement of eye-witness "Churri" and 'Rora' (piece of brick) were thrown away by the accused at the spot on the day of occurrence and the same were taken into possession by the police from the spot on the same day---Recovery of Churri and Rora (piece of brick) from co-accused and Rora (piece of brick) from lady accused was not worthy of reliancem, in circumstances--- Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention--- Appreciation of evidence---Motive was not proved---Scope---Prosecution case was that the accused/wife of the deceased and her paramour committed the murder of son of the complainant---Motive behind the occurrence was that the wife of the deceased had developed illicit relations with co-accused, due to which a dispute arose between deceased and his wife/accused and because of the said grudge, accused persons committed the murder of the deceased---Allegedly, the complainant party was unhappy on account of love marriage of deceased with lady accused, therefore, deceased along with his wife/lady accused was living in the house of his mother-in-law, whereas the prosecution witnesses were residents of a different city and as such there was no chance for the prosecution witnesses to see the accused persons in any objectionable condition so that it might be presumed that there was any illicit relationship between them---None from the prosecution witnesses stated that he had seen the accused persons in any objectionable condition---Motive as alleged by the prosecution could not be proved---Appeal against conviction was allowed, in circumstances.

(g) Criminal trial---

----Medical evidence---Scope---Medical evidence is a type of supporting evidence, which may confirm the prosecution version with regard to receipt of injury, nature of the injury, kind of weapon used in the occurrence but it will 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.

(h) Criminal trial---

----Benefit of doubt---Principle---If there was a single circumstance which created reasonable doubt regarding the prosecution case, the same would be sufficient to give benefit of doubt to the accused.

Tariq Parvaiz v. The State 1995 SCMR 1345; Muhammad Akram v. The State 2009 SCMR 230 and Muhammad Mansha v. The State 2018 SCMR 772 rel.

Ch. Rab Nawaz and Tasawar Hussain Chadhar for Appellants.

Ms. Maida Sobia, Deputy Prosecutor General for the State.

Malik Shahid Iqbal Awan for the Complainant.

2021 Y L R 1959

[Lahore]

Before Muhammad Tariq Nadeem, J

MUHAMMAD ZAHID---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 21396-B of 2021, decided on 3rd June, 2021.

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

----S. 497---Penal Code (XLV of 1860), Ss. 322, 337-G & 427---Qatl-bis-sabab, hurt by rash or negligent driving, mischief causing damage to the amount of fifty rupees---Bail, grant of---Further inquiry---Scope---Allegation against accused was that he while rashly and negligently driving a bus collided with a van which resulted in death of nine persons, whereas, sixteen persons were injured out of which six had passed away after registration of FIR---Investigation revealed that another van had struck from back side of accused person's bus, which was already stopped at the place of occurrence---Gas cylinder installed in the said van had burst and the vehicles had got inflamed---Driver of the said van was still proclaimed offender---Such fact had made the case of accused to be one of further inquiry---Prosecution evidence was devoid of allegation against the accused that he was solely responsible for the accident by doing rash and negligent act---Accused, during investigation, had produced his Heavy Transport Vehicle (HTV) driving licence---Trial Court had to determine whether S. 320 or 322 of P.P.C. was applicable in the presence of a driving licence---Except S. 322, P.P.C., rest of the penal provisions were bailable in nature---Section 322, P.P.C., was not made punishable with some imprisonment---Accused had never remained involved in any case of rash and negligent driving in the recent past, as such, a case of bail was made out in his favour---Petition for grant of bail was allowed, in circumstances.

Muhammad Iqbal alias Bala Bandri v. The State and others 2017 SCMR 1939 ref.

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

----S. 497---Penal Code (XLV of 1860), S. 322---Qatl-bis-sabab---Bail---Scope---Section 322, P.P.C. is not made punishable with some imprisonment and in Second Schedule of Code of Criminal Procedure, 1898, it has been shown as non-bailable, hence the foregoing penal provision is to be treated as not attracting the prohibitory clause of S. 497, Cr.P.C.---If a provision can be interpreted in two different manners, then the one which favours the accused is to be adopted---Bail was granted.

Muhammad Nadeem v. The State 1998 MLD 1537; Tariq Mehmood v. The State 2005 YLR 1968; Ghulam Ali v. The State 2017 YLR Note 339; Ameer Khan v. The State 2018 YLR Note 283; Muhammad Shafi v. The State and another 2020 PCr.LJ 1530 and Israr Hussain Shah v. The State and 2 others 2020 PCr.LJ 1164 ref.

(c) Criminal trial---

----If a provision can be interpreted in two different manners, then the one which favours the accused is to be adopted.

Muhammad Nadeem v. The State 1998 MLD 1537; Tariq Mehmood v. The State 2005 YLR 1968; Ghulam Ali v. The State 2017 YLR Note 339; Ameer Khan v. The State 2018 YLR Note 283; Muhammad Shafi v. The State and another 2020 PCr.LJ 1530 and Israr Hussain Shah v. The State and 2 others 2020 PCr.LJ 1164 ref.

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

----S. 497--- Bail--- Scope--- Mere commencement of trial is no ground for the refusal of bail.

Nisar Ahmad v. The State and others 2014 SCMR 27 and Muhammad Shafi and others v. The State and others 2016 SCMR 1593 ref.

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

----S. 497---Bail---Scope---If offences do not fall within the remit of prohibitory clause of S.497, Cr.P.C., then basic rule is bail not jail, if some exceptional circumstances do exist.

Muhammad Tanveer v. The State and another PLD 2017 SC 733; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Arsalan Masih and others v. The State and others 2019 SCMR 1152; Dr. Abdul Rauf v. The State through D.A.G. 2020 SCMR 1258 and Yousaf Khan v. The State 2000 PCr.LJ 203 ref.

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

----S. 497---Bail---Scope---Heinousness of offence is no ground for the refusal of bail to an accused who otherwise becomes entitled for concession of bail.

Hasnain Mustafa v. The State 2019 SCMR 1914 and Mst. Sughran Mai v. The State and another 2020 MLD 1944 ref.

Muhammad Ashraf Jarral for Petitioner.

Sultan Akbar Chattha, Deputy Prosecutor General for the State with Iqbal, SI.

2021 Y L R 1973

[Lahore]

Before Safdar Saleem Shahid, J

Ch. ABDUL WAHEED through L.Rs.---Petitioners

Versus

ZAHIDA PARVEEN alias NAGINA and 5 others---Respondents

Writ Petition No. 39791 of 2017, decided on 27th May, 2021.

(a) Punjab Rented Premises Act (VII of 2009)---

----S. 15--- Eviction petition---Relationship of landlord and tenant---Scope---Petitioners landlord (petitioner) assailed the dismissal of their petition for ejectment of tenant---Validity---Petitioners had admitted that they had filed the ejectment petition on the basis of oral agreement for which there was no knowledge to the petitioners that when it was settled between their predecessor-in-interest and the respondent's predecessor-in-interest---Even time and year was not specifically known to the petitioners---Even there was no such evidence from which it could be believed that the respondents had paid rent to the petitioners at any time---Petitioners had failed to justify as to why after the commencement of the Punjab Rented Premises Act, 2009, they could not ask the respondents/tenants for written agreement of tenancy---Constitutional petition was dismissed, in circumstances.

Muhammad Rashid Hussain Shamsi v. Syed Hameed ud Din and another 2014 CLC 1367 ref.

Mst. Nasira Afridi v. Muhammad Akbar 2015 MLD 171 and Ameena Haq v. Rab Nawaz Khan and 2 others 2018 CLC Note 92 rel.

(b) Punjab Rented Premises Act (VII of 2009)---

----S. 15--- Eviction petition---Relationship of landlord and tenant---Scope---Where the denial of relationship of landlord and tenant is specifically agitated the question before Rent Tribunal is only to see the status of the parties---Obligatory upon a person claiming himself to be landlord of the premises to establish the evidence that the other person is occupying the premises in the capacity of a tenant and none other and that such tenant is also paying rent against the tenancy of the demised premises, otherwise he would be deemed to have failed to establish his claim and would not be entitled to seek eviction of such a tenant under the Punjab Rented Premises Act, 2009.

Yasin Khan v. Additional District No. VII, District Judge West Islamabad and 2 others 2019 YLR 2894 rel.

(c) Punjab Rented Premises Act (VII of 2009)---

----S. 15--- Eviction petition---Relationship of landlord and tenant---Scope---Receiving of rent and payment of rent are sine qua non for establishing the relationship of tenancy between the parties and in a case where the relationship itself is under question then, it becomes further necessary and imperative to prove the existence of relationship between the parties through evidence and for the very purpose the factum of payment of rent by the tenant to landlord is pivotal to prove or disprove the claim of tenancy and relief sought.

Muhammad Ibrahim v. Niaz Muhammad 2016 CLC 609 rel.

Faisal Ghafoor Khokhar for Petitioners.

2021 Y L R 1989

[Lahore]

Before Ali Baqar Najafi, J

SAROSH SIKANDER and others---Petitioners

Versus

GUARDIAN JUDGE, LAHORE and others---Respondents

Writ Petition No. 248310 of 2018, decided on 23rd June, 2020.

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

----Ss. 8 & 12---Family Courts Act (XXXV of 1964), S. 5, Sched.---Interim custody of minor---'Parent'---Scope---Application moved by grandparent---Maintainability---Respondent (grand-mother of the minor) instituted application for interim custody and visitation rights of minor girl, whereas the petitioner (mother of the minor) filed application for rejection of the same on the ground of maintainability---Guardian Court rejected the application of petitioner---Petitioner invoked constitutional jurisdiction of the High Court contending that only the parents could request for the visitation right of the minor as the 'grandmother' was not covered in the definition of 'parent'---Validity---Record revealed that parents of the minor got married to each other but , soon after the birth of minor, the divorce was effected---Intensity of estrangement was so high that a criminal case was got registered on the behest of father of the petitioner which though was later cancelled---Father of the minor was a foreign national, who came back after the birth of child to see new-born child and to reconcile but the efforts failed and he returned abroad after pronouncing divorce---Petitioner had referred to definition of the word 'parent' from dictionaries, which included adoptive parents, but such concept was not recognized in Islam---Keeping in view the fact in the present case that neither the real father of the minor had come forward with any definite plea nor the effort was made to implead him as a party, his tacit approval could be presumed---Proceedings before the Guardian Court were for the visitation right of the minor only, therefore, the application filed by the grandmother was competent---Constitutional petition dismissed, in circumstances.

(b) Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Guardians and Wards Act (VIII of 1890), Ss. 8 & 12---'Parent'---Scope---Interim custody of minor---Application moved by the grandmother (respondent) before the Guardian Court---Maintainability---Contention of the petitioner (mother of minor) was that only the parents could request for the visitation right of the minor as the 'grandmother' was not covered in the definition of 'parent'---Held, that the word 'parent' used in S. 5 and the Sched. of the Family Courts Act, 1964, was wider in sense and was not restricted to its literal meaning particularly when the grandchild was entitled to inheritance from the grandparent---Application of the respondent (grandmother) was maintainable before the Guardian Court---Constitutional petition was dismissed, in circumstances.

Mst. Mahmooda Sultana v. Mst. Jainila Begum 1988 SCMR 538 ref.

(c) Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Family Court (Amendment) Ordinance, 2002 (LV of 2002), Preamble---Guardian and Wards Act (VIII of 1890), Ss. 8 & 12---Interim custody of minor---Application moved by the grandmother before the Guardian Court--- Maintainability--- 'Parent'---Scope---Respondent (grandmother of the minor) instituted application for interim custody and visitation rights of minor girl, whereas the petitioner (mother of the minor) filed the application for rejection of the same on the ground of maintainability--- Guardian Court rejected the application of petitioner---Contention of the petitioner was that the Family Courts Act, 1964, was promulgated as a special act for special class of people i.e. husband and wife in case of their custody---Validity---Although contention of the petitioner was correct but the Guardians and Wards Act, 1890, also dealt with the situation where only grandparents were contestants, therefore, the same would not stop the Guardian Court to adjudicate upon matter-in-hand---In the Family Court Act, 1964, the Schecule made under S. 5 thereof, prescribed "custody of the children" in clause (5), however, an amendment was made through Family Court (Amendment) Ordinance, 2002 and after " custody of children" the words "and the visitation rights of parents to meet them" were added---Application of the respondent (grandmother) was maintainable before the Guardian Court---Constitutional petition was dismissed, in circumstances.

Farzana Rasool and 3 others v. Dr. Muhammad Bashir and others 2011 SCMR 1361; Mst. Abeera Khan v. Adnan Jamil and another 2019 CLC 1478 and Mst. Maryam Masood v. Mughisuddin Mirza and 2 others 2009 CLC 1443 distinguished.

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

----Ss. 8 & 12---Family Courts Act (XXXV of 1964), Ss. 5, Sched. & 14---Constitution of Pakistan, Art. 199---Constitutional petition filed against an interlocutory order of Guardian Court---Maintainability---Interim custody of minor---Impugned order was just an interlocutory order holding that the application of interim custody/visitation right filed by the grandmother could proceed and the same was not even an order deciding the application filed by the grandmother, therefore, constitutional petition was not maintainable since an appeal could be filed against the final order---Constitutional petition was dismissed in circumstances.

Muhammad Shah Nawaz Khan for Petitioners.

Fahad Ahmad Siddiqui for Respondent No.2.

Zafar Raheem Sukhera, A.A.G. for Respondents.

2021 Y L R 2001

[Lahore]

Before Asjad Javaid Ghural, J

MUHAMMAD AFZAL alias BABA and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 119-J and Criminal Revision No. 373 of 2013, heard on 7th June, 2021.

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

----Ss. 302, 148 & 149---Qatl-i-amd, rioting, armed with deadly weapon, common object---Appreciation of evidence---Benefit of doubt---Chance witness--- Dishonest improvements---Contradiction in ocular and medical evidence--- Delayed post-mortem examination--- Scope--- Accused along with others were alleged to have waylaid the deceased and eye-witnesses, who were closely following the deceased on a motorcycle and fired at the deceased---Complainant and eye-witness were stated to have saved their lives while lying on the ground---Alleged place of occurrence was not the place of witnesses' residence, which was a thoroughfare and, in that eventuality, it was incumbent upon the eye-witnesses to furnish any solid reason in order to establish their presence at the spot at the relevant time---Complainant had not furnished any reason of his presence at the place of occurrence either in the complaint or in his deposition before the trial court---Eye-witnesses while lodging the crime report and making statement under S.161, Cr.P.C. were in unison on the point that the accused persons along with their co-accused (since proclaimed offender) had started firing with their respective weapons upon the deceased but while appearing before the trial court, they had deviated from their earlier stance and had let off the said co-accused from the role of making firing at the deceased---Assailants, as per scaled site plan, were standing at a distance of eight feet from the deceased but according to post-mortem examination report, there was tattooing around an injury on the person of deceased---Medical officer had explained that such tattooing occurred only when the fire shot was made from the range of less than three feet---Constable who had arrived at the scene of occurrence had deposed that crime empties were lying close to each other which led to the conclusion that all the fire shots were made by one person---Evidence of said witness also gave an impression that when he and other police officials reached at the spot, the dead body was lying there which was contrary to the prosecution version---Statement of Investigating Officer led to the conclusion that the complainant was not present at the spot---Post-mortem examination was conducted after a delay of eight hours---Case was replete with several doubts---Appeal against conviction was allowed, in circumstances.

Muhammad Akram v. The State 2009 SCMR 230 rel.

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

----Ss. 302, 148 & 149---Qatl-i-amd, rioting, armed with deadly weapon, common object---Unreasonable motive---Scope---Accused along with others were alleged to have waylaid the deceased and eye-witnesses, who were closely following the deceased on a motorcycle and fired at the deceased---Motive behind the occurrence as ascribed by the prosecution was that the deceased was a cited witness in case lodged by his driver against the accused person under Ss. 324 & 34, P.P.C.---Held; diminishing only one of the eye-witnesses in the said case would not have served any useful purpose for the accused, when the complainant and other eye-witnesses still stood against him---Prosecution had failed to establish motive part of the occurrence---Appeal against conviction was allowed, in circumstances.

(c) Criminal trial---

----Chance witness--- Scope--- Chance witness is one who is not supposed to be present at a specific place, unless he advance convincing and confidence inspiring reason justifying his presence---Once the claimed eye-witness has failed to prove the purpose or a definite work of his presence at the venue of occurrence at the relevant time, his testimony cannot be relied upon to maintain the conviction and sentence under the capital charge.

Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 rel.

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

----S. 302---Qatl-i-amd---Delayed post-mortem examination--- Effect---Unexplained delay in conducting the post-mortem examination on the dead body of the deceased point out a real possibility that the time was consumed in order to procure and plant the eye-witnesses for cooking up a false story.

Muhammad Ilyas v. Muhammad Abid alias Billa and others 2014 SCMR 1698 and Faqeer Muhammad v. Shahbaz Ali and others 2016 SCMR 1441 ref.

Muhammad Ilyas v. Muhammad Abid alias Billa and others 2017 SCMR 54 rel.

(e) Criminal trial---

----Appreciation of evidence---Scope---When ocular account is disbelieved, rest of the evidence, being corroboratory in nature, cannot be made basis to maintain conviction and sentence of the accused.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 rel.

Muhammad Mehmood Ch., Aamir Riaz and Aamir Minhas for Appellants.

Ms. Samra Irshad, Assistant District Public Prosecutor for the State.

Barrister Danial Ijaz Chadhar and Muhammad Irfan for the Complainant.

2021 Y L R 2030

[Lahore]

Before Jawad Hassan, J

AMNA NAWAZ---Petitioner

Versus

DISTRICT JUDGE and others---Respondents

Writ Petition No. 68971 of 2019, decided on 24th May, 2021.

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

----Ss. 12 & 25---Custody of minors---Visitation rights---Modification of earlier visitation schedule chalked out by the Guardian Court which had attained finality due to reported judgment of High Court [(MRS. AMNA NAWAZ CASE, 2018 MLD 1303)]---Jurisdiction of Guardian Court---Scope---Welfare of minor---No lis was pending between the parties---Mother invoked constitutional jurisdiction of the High Court contending that her visitation rights were being infringed in absence of proper visitation schedule for meeting with her children in custody of their father---Held, that for deciding the question of custody of a minor and any other issue relating thereto, welfare of the minor was the paramount consideration for the Guardian Court and, therefore, any issue in said regard was to be assessed, examined and measured by the Guardian Court on such yardstick---Guardian Court had to record a definite finding on said point before passing any order in the matter---In the present case, after the High Court having set aside the judgment passed by the Appellate Court in only the decision of the Guardian Judge was in the field which was the final arbiter of the matters relating to the custody of the minors and there could not be any other Court more suited to issue an amended visitation schedule of meeting of the petitioner with her children---Guardian Court had been empowered to modify, set-aside or alter an earlier order and pass an appropriate order at any subsequent stage to safeguard the interest and welfare of the minor and that the order passed earlier in that context would not operate as a bar of jurisdiction for the Guardian Court for all future time to come---Petitioner, who was real mother of the children, unfortunately, was making hectic efforts and running from pillar to post merely for getting a meeting with her own children but neither visitation schedule , as per order of the High Court, had so far been chalked out due to filing of miscellaneous applications by the respondent/father nor he had appeared and produced children before the High Court despite specific (several) orders/notices ---Non-appearance of the father showed that he was deliberately avoiding to appear and produce children--- High Court set-aside impugned order passed by the Guardian Judge passed in the year 2019 and directed the petitioner to approach Guardian Court for getting a fresh schedule of meeting with her children---Constitutional petition was allowed, in circumstances.

Ayesha Tahir Shafiq v. Saad Amanullah Khan and 2 others PLD 2001 Kar. 371 ref.

Rai Yousaf Muaz for Petitioner.

2021 Y L R 2060

[Lahore]

Before Sohail Nasir, J

RIZWAN AHMAD and 3 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Revision No. 14158 of 2019, heard on 19th May, 2021.

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

----Ss. 324, 337-A, 337-F(vi), 337-L, 353, 186, 147, 148 & 149---Attempt to commit qatl-i-amd, shajjah, munaqqilah, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, rioting, armed with deadly weapon, common object---Appreciation of evidence---Benefit of doubt---Dishonest improvements---Un-natural conduct--- Scope--- Accused persons assailed their conviction passed by the Magistrate and upheld by Sessions Judge--- Allegation against accused persons was that they waylaid the injured and complainant, however, it was only an attempt and to murder the injured---Presence of complainant on the spot was disbelieved by both the Courts below as there was no occasion for him to be present at the crime scene---Parties were having enmity with each other---Statement of injured was recorded after three days of the occurrence---Injured had made material improvements to bring his evidence in line with medical evidence---Several accused persons were declared to be innocent during investigation---Injured was at the mercy of eleven persons and out of them two were stated to be equipped with firearm weapons---According to Medico Legal Report (MLR) as a whole there were nine injuries on the person of injured and most of those were swelling or contused swelling---Sequence of allegations against each accused showed that it was a dancing show or it was a stage drama where every character was making his performance and leaving the stage---Acquittal of several accused persons had remained unchallenged---Judgments of both the Courts below being unsustainable were set aside and the accused persons were acquitted of the charges---Revision petition was allowed, in circumstances.

(b) Criminal trial---

----Witness---Solitary witness---Scope---Conviction can be recorded on the statement of a solitary witness.

Saleem Zada v. The State and others 2019 SCMR 1309 ref.

(c) Criminal trial---

----Witness---Injured witness---Scope---Presumption about presence of injured witness is a settled proposition---Witness's presence at the place of occurrence cannot be disputed or doubted because of injuries on his body.

Amin Ali v. The State 2011 SCMR 323 ref.

(d) Criminal trial---

----Witness---Injured witness---Scope---Injury on the persons of a witness in not an in-built guarantee that whatever he states is the truth and not less than truth---Injured witness loses his evidentiary value, if it is found that he is inimical, interested and responsible for dishonest declaration by involving the persons as accused one after the other.

Said Ahmad v. Zammured Hussain 1981 SCMR 795; Muhammad Hayat v. State 1996 SCMR 1411; Mehmood Ahmad v. State 1995 SCMR 127 and Azeem Khan and others v. Zahid Khan and others 2016 SCMR 274 rel.

(e) Criminal trial---

----Witness---Dishonest improvements---Scope---No reliance can be placed on the testimony of a witness who deliberately introduces improvements in his statement so as to cover the lacunae or to bring his testimony in line with other pieces of evidence.

Sardar Bibi and another v. Munir Ahmad and others 2017 SCMR 344 rel.

(f) Criminal trial---

----Evidene---Medical evidence---Scope---Medical evidence only describes the nature of injuries, kind of weapons used and duration thereof.

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

----Ss. 435 & 439--- Revisional jurisdiction--- Scope--- High Court has authority, not only suo motu but also on an application of an aggrieved party, to call for and examine the record of any proceedings before any inferior criminal Court and pass appropriate orders---In order to invoke the revisional jurisdiction two conditions constituting jurisdictional facts would require to be fulfilled: first, it should relate to proceedings and second, the said proceedings should be before an inferior criminal Court---High Court under revisional jurisdiction has to examine the record for the purpose of satisfying its conscience to check the correctness, legality or propriety of any findings, sentence or order passed by the Courts subordinate to it, therefore, the duty cast upon the High Court on its revisional side compels it to reappraise the entire evidence, if it is found that the Courts below did not appreciate the evidence and the decision was on the basis of erroneous findings.

Ali Gohar v. The State PLD 2020 SC 427 ref.

Muhammad Asif Bhatti for Petitioners.

Ms. Rahila Shahid, DDPP for the State.

Nemo for the Complainant.

2021 Y L R 2096

[Lahore (Multan Bench)]

Before Farooq Haider, J

SAJID ALI---Petitioner

Versus

The STATE and 3 others---Respondents

Writ Petition No. 337 of 2021, decided on 12th January, 2021.

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

----S. 540---Power to summon material witness and examine person present---Scope---Criminal justice system is not adversarial rather inquisitorial and the Court has to reach at just decision of the case; any piece of evidence which is essential for just decision of the case has to be brought on record irrespective of the fact that whether it favours one party or goes against the other; any delay in filing an application for calling/recalling of witnesses for bringing any piece of evidence on record is immaterial; similarly, filling lacuna in the case is also immaterial if said piece of evidence is otherwise necessary for securing ends of justice i.e. 'essential for just decision of the case'.

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

----S. 540---Power to summon material witness and examine person present---Scope---Where Trial Court had allowed re-examination of the complainant for production of his complaint and other documents already available on record, the contention of accused that right/benefit accrued in his favour had been taken away through impugned order, did not hold the water for the reason that such approach may be adopted in civil lis but not in criminal case where approach of the court must be inquisitorial in nature.

Abdul Latif Aasi v. The State 1999 MLD 1069 rel.

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

----S. 540---Power to summon material witness and examine person present---Scope---Where evidence summoned was necessary for just decision of the case then objection regarding curing lapses/omissions left by any party or filling lacuna left by any party became irrelevant and it was mandatory for the Court to summon and examine such evidence.

Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 and The State v. Muhammad Yaqoob and others 2001 SCMR 308 rel.

Mahar Muhammad Akram Bangrath for Petitioner.

2021 Y L R 2127

[Lahore]

Before Rasaal Hasan Syed, J

MUHAMMAD AZEEM---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SIALKOT and 3 others---Respondents

Writ Petition No. 83217 of 2017, decided on 1st April, 2021.

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

----S.25---Custody of minor---Principle---Petitioner was father of minor daughter who was declined her custody by two Courts below---Validity---Central consideration was welfare of minor and to determine the same all relevant factors had to be kept in view---Petitioner never evinced any interest in welfare of minor, never availed visitation rights during trial or appeal and he never expressed his desire to meet minor despite the fact that he was permitted by Court to meet the minor as per schedule fixed---Minor was comfortable with her maternal grandmother---During last approximately nine years petitioner had not attempted to meet the minor even once either during proceedings for recovery of her maintenance allowance or in Trial Court---High Court declined to interfere in concurrent orders passed by two Courts below, as the same were not suffering from any misreading of record or error of law or jurisdiction---Constitutional petition was dismissed, in circumstances.

Mehmood Akhtar v. District Judge, Attock and 2 others 2004 SCMR 1839; Mst. Nighat Firdous v. Khadim Hussain 1998 SCMR 1593; Mukhtar Ahmed Shahzad v. Muhammad Adeel and others 2020 MLD 368; Mst. Firdous Iqbal v. Shifaat Ali and others 2000 SCMR 838 and Shabana Naz v. Muhammad Saleem 2014 SCMR 343 rel.

Ch. Azhar Siddique Cheema for Petitioner.

Zulfiqar Ali Dhuddi for Respondents.

2021 Y L R 2160

[Lahore (Rawalpindi Bench)]

Before Muhammad Tariq Abbasi and Raja Shahid Mehmood Abbasi, JJ

GOHAR ZAMAN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 712 of 2017, heard on 26th November, 2019.

(a) Explosive Substances Act (VI of 1908)---

----Ss. 3 & 4---Anti-Terrorism Act (XXVII of 1997), S.7---Causing explosion likely to endanger life or property, attempt to cause explosion or making or keeping explosive with intent to endanger life or property, act of terrorism---Appreciation of evidence--- Benefit of doubt--- Contradictions in the statements of witnesses---Effect---Prosecution case was that 125 kilograms explosive substance, 1600 detonators and 2500 metres wire were recovered from the vehicle of accused---Report of Bomb Disposal Commander suggested that the prohibited material was examined by him, however, Commander while appearing as witness stated different date and time of examination---Prosecution witnesses as well as the report revealed that accused persons were apprehended on 07.10.2015 and the explosive material was examined on the same day; however, Bomb Disposal Commander while appearing as witness stated that on 10.10.2015 he inspected the prohibited material, therefore, there was clear contradiction in the deposition of date of inspection of the prohibited material which questioned the authenticity of the report--- Statements of the said prosecution witnesses were absolutely silent about the fact of preparing samples of explosive material at the spot, which were to be sent to the office of Forensic Science Agency for analysis, which fact further created dent in the prosecution story---Prosecution, therefore, had failed to bring on record any evidence that the accused had any nexus or connection with any proscribed/banned organization---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

(b) Explosive Substances Act (VI of 1908)---

----Ss. 3, 4 & 19---Anti-Terrorism Act (XXVII of 1997), S.7---Causing explosion likely to endanger life or property, attempt to cause explosion or making or keeping explosive with intent to endanger life or property, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that 125 kilograms explosive substance, 1600 detonators and 2500 metres wire were recovered from the vehicle of accused---Record showed that the case was investigated by an Assistant Sub-Inspector, in clear violation of S.19 of the Explosive Substances Act, 1908 which ordained that the offences under said Act shall be investigated by a Police Officer not below the rank of Inspector, which aspect made the prosecution case doubtful---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

(c) Criminal trial---

----Benefit of doubt---Principle---If there was a single circumstance which created reasonable and cogent doubt regarding the prosecution case, the same was sufficient to extend benefit to the accused.

Tariq Parvaiz v. The State 1995 SCMR 1345 rel.

Barrister Osama Amin Qazi for Appellants.

Shah Shoaib for Umer Ali, Appellant (Gohar Zaman).

Naveed Ahmad Warraich, D.D.P.P. with Javaid, S.I. for the State.

2021 Y L R 2189

[Lahore]

Before Syed Shahbaz Ali Rizvi, J

MUHAMMAD AZHAR IQBAL---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 22547-B of 2021, decided on 21st May, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, grant of---Failure to specify the nature of liability in FIR---Effect---Accused sought post-arrest bail in an FIR registered against him under S.489-F, P.P.C.---First Information Report was silent about the nature of liability against which the cheque was issued---Investigation Agency had not investigated in that regard---Requirement of law to constitute an offence punishable under S.489-F, P.P.C., was issuance of cheque with dishonest intention and that too towards re-payment of a loan or fulfilment of an obligation---Mere issuance of cheque by one person to another without satisfying the said pre-requisites did not constitute the offence---Trial Court had yet to determine as to whether the subject cheque was issued with dishonest intention for re-payment of loan or for fulfilment of some obligation---Accused had made out his case to be one of further inquiry into his guilt---Petition for grant of the bail was allowed, in circumstances.

Muhammad Khalil Rana for Petitioner.

Malik Muhammad Ashfaq for the Complainant.

Nisar Ahmad Virk, Deputy Prosecutor General for the State.

2021 Y L R 2210

[Lahore]

Before Tariq Saleem Sheikh and Anwaarul Haq Pannun, JJ

SHAFIQUE AHMAD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 1308 of 2013, heard on 2nd February, 2021.

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

----Ss.302(b), 324, 353, 186, 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 duty, obstructing public servant in discharge of public functions, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Contradictions in the statements of witnesses---Scope---Accused was charged that he along with co-accused made indiscriminate firing upon police contingent deployed at the bay with automatic weapons, as a result of which, four Police Officials were killed at the spot, while one escaped---Complainant and other witness stated that the incident took place at 7.10 p.m.---On the other hand, Police Official who escaped firing stated the time as 6.15 p.m. and added that complainant came at 7.23 p.m.---Such was a material contradiction, which could not be ignored---Said fact indicated that complainant and witness came at the spot after the occurrence---Circumstances established that the prosecution had failed to prove the charge against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss.302(b), 324, 353, 186, 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 duty, obstructing public servant in discharge of public functions, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Statement of eye-witness---Scope---Accused was charged that he along with his co-accused made indiscriminate firing upon police contingent deployed at the bay with automatic weapons, as a result of which, four Police Officials were killed at the spot, while one escaped---Evidence of eye-witness was of little help for the prosecution---Witness testified that he was saved because when the terrorists attacked he was not with the deceased Police Officials and had gone to drink water---Said fact raised a question as to whether he had a good look at the assailants and could identify them---Testimony of said witness was absolutely silent on that point---Said witness, in his examination-in-chief, did not say that the accused was among them---Circumstances established that the prosecution had failed to prove the charge against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss.302(b), 324, 353, 186, 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 duty, obstructing public servant in discharge of public functions, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Accused was nominated through supplementary statement---Scope---Accused was charged that he along with his co-accused made indiscriminate firing upon police contingent deployed at the bay with automatic weapons, as a result of which, four Police Officials were killed at the spot, while one escaped---Record showed that FIR was registered against unknown accused---Further, neither the complaint nor the FIR described the features of any of the assailants---Complainant nominated the accused in the case through a supplementary statement without disclosing the source of his information or the circumstances which made him suspect that he was involved---Even during the trial, complainant did not say anything about the same---Circumstances established that the prosecution had failed to prove the charge against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss.302(b), 324, 353, 186, 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 duty, obstructing public servant in discharge of public functions, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Extra-judicial confession of the accused---Accused was charged that he along with his co-accused made indiscriminate firing upon police contingent deployed at the bay with automatic weapons, as a result of which, four Police Official were killed at the spot, while one escaped---Prosecution had produced two witnesses to prove the extra-judicial confession of accused made before them---Said witnesses deposed that the accused came to them, confessed that he was among those who targeted the place and requested for pardon---Accused allegedly also admitted that he was actively involved in planning attacks on the Pakistan Army---One witness was the father of one of the deceased while other witness was the brother of another deceased---No palpable reason was available for the accused to make an extra-judicial confession before said witnesses---No evidence was available that accused approached them to ventilate his suffocating conscience or was in a morass and needed their help---Conduct of the witness before whom the extra-judicial confession was made also a relevant factor for determining its credibility, which was unnatural---Witnesses did not make any effort to apprehend the accused and let him leave---More importantly, if the accused confessed his guilt as alleged and on the same day witnesses informed the police, why was the complainant not aware of it when he made his supplementary statement---Circumstances established that the prosecution had failed to prove the charge against the accused---Appeal against conviction was allowed, in circumstances.

Mulk Raj v. The State of U.P AIR 1959 SC 902; Narayan Singh and others v. State of M.P. AIR 1985 SC 1678 and Sahadevan and another v. State of Tamil Nadu AIR 2012 SC 2435 rel.

(e) Criminal trial---

----Extra-judicial confession---Scope---Extra-judicial confession was to be received with utmost caution because it could be effortlessly procured and easily concocted.

Ahmad v. The Crown PLD 1951 FC 107; Abdul Latif v. Crown PLD 1952 FC 113; Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231 and Mst. Asia Bibi v. The State and others PLD 2019 SC 64 rel.

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

----Ss.302(b), 324, 353, 186, 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 duty, obstructing public servant in discharge of public functions, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Recovery of weapon, explosive material and literature from accused---Scope---Accused was charged that he along with his co-accused made indiscriminate firing upon contingent deployed at the bay with automatic weapons, as a result of which four Police Officials were killed at the spot, while one escaped---Record showed that MP-5 rifle which was snatched from the deceased Police Officials at the time of attack was recovered from accused---Said rifle was a vital piece of evidence but the same was not produced at the trial---Prosecution only examined two witnesses in whose presence said rifle was recovered and Police Constable, who identified the same and signed identification memo in respect thereof---Evidence of said witnesses was of little consequence---According to the prosecution, a huge quantity of explosives was recovered from the accused in two instances, included suicide jackets, rifles, detonators, IEDs, dry batteries, timers, remote control devices, explosive substance weighing 75 kilograms and hand grenades---Said evidence could not be used against the accused in the case for a number of reasons; first, the said explosives were recovered during investigation of other FIR registered at other Police Station and yet another FIR of another Police Station; secondly, those were not produced during the trial of the present case and only the recovery memo was exhibited; thirdly, the accused was not indicted in respect thereof and lastly, accused was not confronted with the said recovery when his statement under S.342, Cr.P.C. was recorded---Prosecution witnesses deposed that accused led to recovery of Jehadi literature which was seized vide recovery memo, included magazines, six letter pads, four DVDs (without stickers), pamphlet and written material---Recovery witness, during cross-examination, had admitted a fortnight earlier, they visited the house of accused; question arose as to why the said literature was not recovered---Name of accused was not written on any of the articles---Trial Court had held that the recovery was doubtful and there was no reason to differ with the same---Admittedly, the said recoveries were made from the jurisdiction of another police station---Accused and co-accused, during trial, adduced documents which showed that the Investigating Officer did not make entry in the roznamcha of the concerned police station before undertaking the said proceedings---Circumstances established that the prosecution had failed to prove the charge against the accused---Appeal against conviction was allowed, in circumstances.

Muhammad Shah v. The State 2010 SCMR 1009; Qaddan and others v. The State 2017 SCMR 148; Muhammad Saddique v. The State 2018 SCMR 71; Imtiaz alias Taj v. The State and others 2018 SCMR 344 and Amin Ali and another v. The State 2011 SCMR 323 rel.

Muhammad Irfan Malik, assisted by Bilawal Ali Nawaz for Appellant.

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

2021 Y L R 2253

[Lahore]

Before Sadaqat Ali Khan and Muhammad Amjad Rafiq, JJ

RIZWAN AKHTAR alias RAZI BAWA and another---Appellants

Versus

The STATE ---Respondent

Criminal Appeal No. 1112-J and Murder Reference No. 290 of 2015, heard on 18th May, 2021.

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

----Ss. 302, 367-A & 377---Qatl-i-amd, kidnapping or abducting in order to subject person to unnatural lust, unnatural offence---Appreciation of evidence---Benefit of doubt---Last seen evidence--- Scope ---Accused were charged for committing sodomy and murder of the son of the complainant---Record showed that last seen evidence had been furnished by two brothers/ witnesses, who were also khalazad of the complainant---Said witnesses stated that at evening time, they had seen the deceased sitting in between the accused persons while riding on a motor cycle who were proceeding towards the place of occurrence---Witnesses told said fact to the complainant after two days when their statements were recorded by the police---Complainant, however, admitted in cross-examination that both the said witnesses were present in the Namaz-e-Janaza of deceased---Conduct of said two witnesses was highly improbable who did not inform the complainant in time---Circumstances established that the prosecution had failed to bring home the guilt of the accused---Appeal against conviction was allowed, in circumstances.

(b) Criminal trial---

----Evidence---Last seen evidence---Scope---Last seen evidence was a weak type of evidence which could be procured at any time during the investigation when direct evidence was not available to the prosecution.

Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 rel.

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

----Ss. 302, 367-A & 377---Qatl-i-amd, kidnapping or abducting in order to subject person to unnatural lust, unnatural offence---Appreciation of evidence---Benefit of doubt---Last seen evidence---Evidence of wajtakkar---Scope---Accused were charged for committing sodomy and murder of the son of the complainant---Wajtakkar witness stated that between, Asar and Maghrib time, he was going to his house, when he reached near place of occurrence, he had seen a motorcycle parked near the wall---In the meantime, both the accused alighted from the wall, sat on the motorcycle and went away---Said witness narrated the said fact to the complainant as well as the police---Witness, in his cross-examination had admitted that he was step-brother of complainant---Question had arisen that how the witness being step paternal uncle of the deceased remained unaware of murder of deceased and about his funeral---Accused had also not mentioned the registration number of the motorcycle of the accused---Said witness did not claim himself to be the eye-witness of the occurrence rather his evidence was maximum of "Wajtakkar", which was a weak type of evidence and was not believable in absence of independent corroborative piece of evidence which was conspicuously missing in the case---Circumstances established that the prosecution had failed to bring home the guilt of the accused---Appeal against conviction was allowed, in circumstances.

Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477 rel.

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

----Ss. 302, 367-A & 377---Qatl-i-amd, kidnapping or abducting in order to subject person to unnatural lust, unnatural offence---Appreciation of evidence---Benefit of doubt---Extra-judicial confession---Scope---Accused were charged for committing sodomy and murder of the son of the complainant---Witness of extra judicial confession, a close relative of the complainant, stated that he was present along with another witness on Railway station, when at about 10/10.15 am, both the accused individually confessed their guilt before them---Said witness was interested witness and could not be relied upon---Alleged extra judicial confession made by the accused before the said witness was of no avail to the prosecution, as the evidence of extra judicial confession was a weak type of evidence---Circumstances established that the prosecution had failed to bring home the guilt of the accused---Appeal against conviction was allowed, in circumstances.

Tahir Javed v. The State 2009 SCMR 166 rel.

(e) Criminal trial---

----Evidence---Medical evidence---Scope---Medical evidence though might confirm the ocular evidence with regard to the seat of the injury, nature of injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of crime.

Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 rel.

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

----Ss. 302, 367-A & 377---Qatl-i-amd, kidnapping or abducting in order to subject person to unnatural lust, unnatural offence---Appreciation of evidence---Benefit of doubt---Recovery of incriminating material--- Reliance---Scope---Accused were charged for committing sodomy and murder of the son of the complainant---Recovery of blood-stained piece of concrete from accused and recovery of blood stained Qameez of co-accused on their lead was inconsequential particularly when Qameez and concrete were not sent for chemical analysis---Even recovery of motorcycle was of no use for the prosecution when witness did not depose about its registration number---Circumstances established that the prosecution had failed to bring home the guilt of the accused---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Principle----One tainted piece of evidence could not corroborate another tainted piece of evidence and if it was allowed to be done then very necessity of corroboration would be frustrated.

Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 rel.

(h) Criminal trial---

----Benefit of doubt---Principle---Where not a single piece of prosecution evidence inspired confidence and even the accumulative effect of whole prosecution case did not advance the case of prosecution, benefit of doubt would go to accused.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Muhammad Ahsan Bhoon assisted by Irfan Gondal for Appellant (Rizwan Akhtar).

Tazheer Shahzad Tarrar for Appellant (Habib Khan).

Muhammad Nawaz Shahid, Deputy Prosecutor General for the State.

Ch. Lehrasib Khan Gondal for the Complainant.

2021 Y L R 2259

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

MUHAMMAD ASHRAF IQBAL and others---Petitioners

Versus

ABID HUSSAIN and others---Respondents

Writ Petition No. 2939 of 2016, heard on 17th June, 2021.

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

----S. 9---Suit for recovery of possession of immoveable property---Ingredients---Plaintiff was to prove that he was in possession of the immoveable property in suit; who had been dispossessed by the defendant; that the dispossession was not in accordance with the law; and the dispossession took place within six months of the filing of the suit.

Canal View Cooperative Housing Society v. Javed Iqbal and another PLD 2004 SC 20 and Late Mst. Majeedan through Legal heirs and another v. Late Muhammad Naseem through Legal Heirs and another 2001 SCMR 345 ref.

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

----S. 9---Suit for recovery of possession of immoveable property---Prior possession of the plaintiff---Proof---Suit of the petitioners/plaintiffs over suit-property (plot) was dismissed concurrently---Held, that the petitioners/plaintiffs had not incorporated in the plaint any eye-witness of the alleged occurrence regarding forceful possession taken by the respondents/defendants--- One of the witnesses produced by the petitioners, during the cross-examination, could not even tell the four boundaries of the suit-property(plot)---On the other hand, the respondents had registered sale-deed in their favour which clearly described the four boundaries of the suit-plot---Respondents had also produced sanctioned map which clearly showed that they(respondents) were in possession of the suit-property---Both the parties were co-sharers in a joint Khata and without establishing prior possession upon a specific portion of land and subsequent dispossession by the respondents, the suit of the petitioners could not succeed---Petitioners/plaintiffs had failed to prove that they were in possession of the suit-property and had been dispossessed by the respondents/ defendants other than in due of course of law within six months of filing of suit---No illegality or infirmity was found in the impugned judgments and decrees passed by both Courts below, dismissing the suit of the petitioners/plaintiffs---Revision petition was dismissed, in circumstances.

Ms. Asma Khan for Petitioners.

Hamayun Syed Rasool for Respondent No.2.

2021 Y L R 2282

[Lahore]

Before Malik Shahzad Ahmad Khan and Mirza Viqas Rauf, JJ

MAZHAR ABBAS---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 238458 of 2018, decided on 11th March, 2020.

(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---Non-mentioning of full protocols---Effect---Accused was alleged to have been found in possession of 1050 grams of charas---Report of Forensic Laboratory did not give the details of the full protocols and the test applied at the time of analysis of sample of narcotic---Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, had made it imperative on the analyst to mention result of material analyzed with full protocols applied thereon along with other details in the report---Single circumstance creating reasonable doubt was sufficient to cast doubt about the veracity of prosecution case and the benefit of said doubt has to be extended in favour of the accused not as a matter of grace or concession but as a matter of right---Appeal against conviction was allowed, in circumstances.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 and Khair-ul-Bashar v. The State 2019 SCMR 930 rel.

Tariq Parvez v. The State 1995 SCMR 1345; Akhtar Ali and others v. The State 2008 SCMR 6 and Muhammad Zaman v. The State and others 2014 SCMR 749 ref.

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

----S. 9---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Scope---Control of Narcotic Substances Act, 1997, provides stringent punishments, therefore, the proof has to be construed strictly and the benefit of any doubt in the prosecution case must be extended to the accused.

Muhammad Hashim v. The State PLD 2004 SC 856 ref.

(c) Criminal trial---

----Harder the sentence, stricter the standard of proof.

Ameer Zeb v. The State PLD 2012 SC 380 ref.

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

----S. 36--- Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6---Report of Government Analyst---Report of test or analysis---Scope---Any report failing to describe in it, the details of the full protocols and the tests applied will be inconclusive, unreliable, suspicious and untrustworthy and will not meet the evidentiary presumption attached to a report of the Government Analyst under S.36(2) of Control of Narcotic Substances Act, 1997.

Nasir Mehboob Tiwana for Appellant.

Muhammd Arshad Ali Farooqi, Deputy Prosecutor General for the State.

2021 Y L R 2310

[Lahore (Multan Bench)]

Before Ch. Muhammad Iqbal and Jawad Hassan, JJ

MUHAMMAD HUSSAIN and another---Appellants

Versus

PROVINCE OF PUNJAB through District Officer Revenue, Multan and others---Respondents

R.F.A. No. 168 of 2016, heard on 24th February, 2021.

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

---Ss. 4, 23, 17 & Preamble---Compensation, determination of---Commercial nature of acquired land---Proof---Price of acquired land was assessed as agricultural one---Contention of the appellants was that their acquired land was commercial in nature as the same was situated at a distance of 1 to 1.5 furlong from main road---Validity---Though attorney of the appellants deposed in his evidence that that the property-in-question was commercial in nature as the same was situated at a distance of 1 to 1.5 furlong from main road, however, he admitted in cross-examination that he did not append any documentary evidence regarding said stance with the objections filed under S.17 of the Land Acquisition Act, 1894 before the Land Acquisition Collector; and that he was also unable to produce any such documentary evidence before the Referee Court while deposing evidence---Said attorney also admitted that land-in-question was agricultural in the beginning---On the contrary, witness of the respondents (acquiring agency) produced material documents (sale-mutations of relevant period, correspondence/process qua acquisition/ approval adopted by the respondents etc.) showing the market value of the land-in-question---Appellants were under legal obligation to prove the claim of their land being commercial through leading trustworthy, corroborative and unimpeachable evidence but neither they mentioned in their statement any contemporary sale transaction of land nor produced in their documentary evidence any sale deeds/mutations immediately adjacent to the acquired land---Appellants had also not produced any valid document (Parcha Aks Shajra, visual site plan etc.) to demonstrate exact location of acquired land to prove their stance that acquired land was situated near the main road---No material/ concrete oral as well as documentary evidence was made available on record by the appellants to substantiate their asserted stance---Trial Court had rightly dismissed the reference---No illegality, material irregularity or misreading of evidence was found in impugned judgment and decree passed by the Referee Court---Appeal was dismissed, in circumstances.

Abdul Sattar v. Land Acquisition Collector Highways Department and others 2010 SCMR 1523 and Lahore Ring Road Authority and others v. Mian Mumtaz Ahmad and others 2021 CLC 178 ref.

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

----Art. 71---Land Acquisition Act (Iof 1894), S.23 & Preamble---Compensation, determination of---Commercial nature of acquired land--- Proof--- Hearsay evidence--- Effect--- Price of acquired land was assessed as agricultural one---Plea of the appellants (landowners) was that compensation for their land, acquired for construction of by-pass, should be given to them at the commercial rate, whereas the price was wrongly assessed as that of agricultural land---Validity---Appellants, apart from their attorney, also produced two witnesses but they deposed/admitted in their cross-examination that they had no personal knowledge about lis and had deposed whatever knowledge was given to them by the appellants---Statements of said witnesses were based on mere hearsay evidence which had narrow scope of intrinsic value until and unless the same had been corroborated with other evidence, whereas Art. 71 of Qanun-e-Shahadat, 1984 required that oral evidence shall be direct and such hearsay evidence was not admissible---Appeal was dismissed.

Gulzar Ahmad and others v. Muhammad Anwar and others 2003 SCMR 1008 and Abdul Qayyum v. Muhammad Sadiq 2007 SCMR 957 ref.

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

----Art. 132---Land Acquisition Act (I of 1894), S.23 & Preamble---Compensation, determination of---Commercial nature of acquired land---Proof---Statement of the witness(es) not cross-examined by the opposing party---Effect---Price of acquired land was assessed as agricultural one---Plea of the appellants (landowners) was that compensation for their land, acquired for construction of by-pass, should have been given to them at the commercial rate, whereas the price was wrongly assessed as that of agricultural land---Validity---Witness (colony clerk) of the respondents (acquiring agency) produced material documents (sale-mutations of relevant period, correspondence qua acquisition/approval adopted by the respondents etc.) showing the market value of the land-in-question; and statement of said witness was not cross-examined by the appellants, as such, said statement would be deemed to be admitted---Appeal was dismissed.

Mst. Nur Jehan Begum through LRs v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 ref.

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

----O. XIII, Rr. 3 & 4---Land Acquisition Act (I of 1894), S.23 & Preamble---Production and exhibiting of documents---Scope---Compensation, determination of---Record revealed that the documentary evidence of the appellants had been produced in trial proceedings by their counsel in his statement, which was not a valid tendering of documents---Law required that the documents relied upon or on basis of which the case had been filed, should be produced in the evidence by party itself and fair opportunity should be given to the opposite party to cross-examine the same---In the present case, the documents produced by the appellants' counsel could not be relied upon as valid piece of evidence and ordinarily such documents were excluded from being taken into consideration---Appeal of the landowners was dismissed.

Mst. Hameeda Begum and others v. Mst. Irshad Begum and others 2007 SCMR 996; Federation Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others PLD 2010 SC 604 and Province of the Punjab through Collector, Sheikhupura and others v. Syed Ghazanfar Ali Shah and others 2017 SCMR 172 ref.

Ch. Muhammad Tariq Manj for Appellants.

Muhammad Shahid Riaz, Assistant Advocate General Malik for Respondents.

Malik Sohail Ashiq Shujra for Respondent No.2.

2021 Y L R 2349

[Lahore]

Before Malik Shahzad Ahmad Khan and Muhammad Tariq Abbasi, JJ

QALANDAR SHAH---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 1161 of 2019, heard on 13th January, 2021.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Preparation of consolidated sample---Effect---Accused was alleged to have been found in possession of 1160 grams of charas---Recovered contraband consisted of pieces, however, a consolidated sample parcel was prepared and no separate sample parcel of each piece was prepared---Prosecution could not bring on record the exact weight of each piece, therefore, consolidated sample parcel of charas weighing 66.25 grams, which was sent to the Forensic Laboratory, could not be considered as a representative sample of the whole contraband material so recovered---Prosecution could not prove its case beyond shadow of doubt against the accused to the extent of recovery of 1160 grams of charas, however, the prosecution had proved its case against the accused beyond the shadow of doubt to the extent of recovery of 66.25 grams of charas, which was sent to the office of Chemical Examiner for analysis---Safe transmission of the sample parcel to the office of Forensic Laboratory was also proved by the prosecution---Conviction of the accused was converted from Ss.9(a) 9(b) & 9(c) of Control of Narcotic Substances Act, 1997---Appeal against conviction with the modification in sentence was dismissed, in circumstances.

Ameer Zeb v. The State PLD 2012 SC 380 and Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 ref.

Ch. Nazir Hussain and Muhammad Ashraf Sagoo for Appellant.

Irfan Zia, Deputy Prosecutor General for the State.

2021 Y L R 2430

[Lahore]

Before Anwaarul Haq Pannun and

Muhammad Amjad Rafiq, JJ

NOOR ELAHI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 682 and Capital Sentence Reference No.30-N of 2015, heard on 7th June, 2021.

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

----S.9(c)---Transportation of narcotics---Appreciation of evidence--- Scope---Accused was sentenced to death for trying to smuggle 46.800 kilograms of heroin through a consignment consisting of 16 iron boxes containing stones---Prosecution had succeeded in proving that the accused's firm was hired for the purpose of export of consignment in question and all the relevant documents such as, Goods Declaration Forms, Packing Invoices, Undertaking of the Company, Application for Export Approval / Import Authorization, Certificates of Origin, Declaration Form furnished by the Exporter, Air Waybill related to the accused (firm)---Material witnesses had remained consistent on all the relevant facts and no significant contradiction in their statements had come on record---Positive report was received from the Chemical Examiner in response to sixteen sample parcels of heroin sent for chemical analysis---No previous criminal history of the accused was brought on record, hence he was deemed to be the first offender warranting lesser sentence---Conviction of accused was altered from death to imprisonment for life---Appeal against conviction was dismissed, in circumstances.

(b) Criminal trial---

----Benefit of an extenuating circumstance was to be considered while deciding the question of sentence of a convict.

Ghulam Mohy-ud-Din alias Haji Babu and others v. The State 2014 SCMR 1034 ref.

Khawaja Muhammad Ajmal and Naveed Afzal Basraa for Appellant.

Zafar Iqbal Chohan, Special Prosecutor for A.N.F. for the State.

2021 Y L R 32

[Peshawar (Abbottabad Bench)]

Before Ahmad Ali, J

LAND ACQUISITION COLLECTOR, E-35 and 2 others---Appellants

Versus

Mst. RESHAM JAN---Respondent

R.F.As. Nos. 64-A to 71-A, 73-A to 80-A, 82-A, 83-A, 86-A, 87-A to 102-A and 105-A to 115-A of 2017, decided on 12th March, 2020.

Land Acquisition Act (I of 1894)---

----Ss. 18 & 23---Reference to court---Enhancement of compensation---Market value---Determination of---Procedure---Local commission, appointment of---Referee Judge, in absence of any material had considered the date of announcement of award as date of taking over possession of suit land---Compensation was to be determined according to market rate of land prevailing at the time of taking over possession---Prices of adjacent lands were substantial factors to determine market value of acquired land---Potential prospects, future use of land and its commercial and residential activities were also to be taken into account while determining compensation--- Local commission was to be appointed to determine market value prevailing at the time of taking over possession of acquired land---Impugned judgment was set aside by the High Court and case was remanded to the Trial Court with the direction to appoint local commission for determination of market value of suit property---Appeal was allowed, accordingly.

Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and another 1999 SCMR 1647; Province of Punjab v. Jamil Ahmad Malik 2000 SCMR 870 and Province of Punjab through Collector, Bahawalpur and others v. Sh. Hassan Ali and others PLD 2009 SC 16 rel.

Nasir Ayub Khan for Appellants.

Javed Iqbal Sheikh for Respondent.

2021 Y L R 84

[Peshawar]

Before Muhammad Naeem Anwar, J

BAHADUR and 82 others---Petitioners

Versus

COLLECTOR LAND ACQUISITION and 13 others---Respondents

Civil Revision No. 847-P of 2009, decided on 2nd March, 2020.

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

----S. 42---Acquisition of Shamilat land---Suit for declaration---Maintainability---Contention of plaintiffs was that they being owners of suit property were entitled for compensation to the extent of their shares---Trial Court decreed the suit but Appellate Court dismissed the same---Validity---Owners of the village were joint owners of its Shamilat and their shares should be determined proportionate to the size of their holding vis-à-vis total land in the village excluding Malikan-e-Qabza---Entitlement of each original owner to the Shamilat should be determined on the basis of revenue being paid by Khewatdar and mentioned in revenue papers---Plaintiffs were owners of Shamilat which had been acquired by the authorities, therefore, they were entitled for compensation of suit property---Land could not be acquired without compensation---Authorities were bound to pay compensation of acquired land to the plaintiffs as per their entitlement---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Revision was allowed, in circumstances.

Said Umer Shah v. Hasham and others in PLD 1978 Pesh. 3 ref.

Land Acquisition Collector and others v. Mst. Iqbal Begum PLD 2010 SC 719; Jahangir Saddique Khan v. Secretary Ministry of Defense and 2 others 2017 YLR 1909 and Qazalbash Waqif v. Chief Land Commission, Punjab and others PLD 1990 SC 99 rel.

(b) Words and phrases---

----'Shamilat'---Meaning.

(c) Words and phrases---

----'Aala Malik'---Meaning.

(d) Words and phrases---

----'Adna Malik'---Meaning.

(e) Words and phrases---

----'Holding'---Meaning.

(f) Words and phrases---

----'Khewatdar'---Meaning.

Muhammad Taif Khan for Petitioners.

Rehmanullah for Respondents.

2021 Y L R 163

[Peshawar (Bannu Bench)]

Before Ms. Musarrat Hilali and Sahibzada Asadullah, JJ

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

Versus

FAIZULLAH and 3 others---Respondents

Criminal Appeal No. 145-B of 2018, decided on 29th April, 2020.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Prosecution case was that the accused persons, duly armed with Kalashnikovs, made indiscriminate firing at complainant party, as a result of which, son of complainant got hit and died---Motive for the offence was stated to be a dispute over women folk---In the present case, the complainant was the only eye-witness who was examined and the prosecution case hinged upon the testimony of complainant who was also father of the deceased---Despite allegation of indiscriminate firing by four accused with the Kalashnikovs, question arose as to how the complainant escaped unhurt---Explanation given by complainant did not appeal to prudence---Complainant stated that after the occurrence they arranged a cot and vehicle for the deceased and took the dead body to the hospital, however, he was unable to disclose the names of persons who arranged the cot and the vehicle---Admittedly, the occurrence took place in a market and according to the complainant people were present at the time of occurrence, but none from them was cited as witness---Deceased succumbed to the injuries on the spot, but his dead body was shifted to hospital despite the fact that police station was situated at a distance of 1-½ furlong from the spot---Scribe of the report stated that the place of occurrence was situated inbetween the police station and hospital, so why the report was not lodged at the police station, rather the dead body was shifted to hospital where report was lodged---Circumstances established that the prosecution failed to prove the guilt of the accused beyond reasonable doubt---Appeal against acquittal was dismissed, in circumstances.

Nazeer Ahmad and others v. The State and others 2019 SCMR 594 rel.

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

----Ss. 302, 324 & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Withholding of best evidence---Effect---Prosecution case was that accused persons, duly armed with Kalashnikovs, made indiscriminate firing at complainant party, as a result of which, son of complainant got hit and died---Record showed that two witnesses identified the dead body before the police at the time of preparation of the inquest report and later on before the doctor when he was conducting the post mortem examination---Presence of those witnesses on the spot at the time of occurrence could not be doubted as they were the people who accompanied the dead body from the spot and their names were put in the calendar of the witnesses but during trial they were abandoned---Prosecution failed to explain as to why those witnesses were not produced they were independent and disinterested witnesses---Had they been produced they would have told the truth, but their non-production gave an inference that they were not ready to support the false charge of the complainant against the accused---Article 129(g) of Qanun-e-Shahadat, 1984 would cater the said situation---Prosecution came with an excuse that those witnesses could not be produced being close relatives of the accused and it feared that they would not support the prosecution case---Said explanation did not appeal to a prudent mind---Circumstances established that the prosecution had failed to prove the guilt of the accused beyond reasonable doubt---Appeal against acquittal was dismissed, in circumstances.

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

----Art. 129(g)---Withholding of best evidence---Scope---If best possible evidence is withheld, its non-production will react against the prosecution with an adverse inference.

Lal Khan v. The State 2006 SCMR 1846 rel.

(d) Criminal trial---

----Benefit of doubt---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.

(e) Criminal trial---

----Appreciation of evidence---Principles---Truth and falsity of the prosecution case can only be judged when the entire evidence and circumstances are scrutinized and examined in its correct perspective.

Muhammad Khan and another v. The State 1999 SCMR 1220 rel.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Non-recovery of crime empties from the spot---Effect---Prosecution case was that the accused persons, duly armed with Kalashnikovs, made indiscriminate firing at complainant party, as a result of which, son of complainant got hit and died---Allegedly, four persons made indiscriminate firing with Kalashnikovs, but not even a single empty was recovered from the spot---No explanation was furnished by the prosecution as to why empties were not recovered from the spot---No bullet marks were noted by the Investigating Officer in the surroundings of the spot---Said fact touched the very roots of the case and could not be brushed aside---Circumstances established that the prosecution had failed to prove the guilt of the accused beyond reasonable doubt---Appeal against acquittal was dismissed, in circumstances.

(g) Criminal trial---

----Evidence---Two views---Scope---If two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.

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

----S. 417---Appeal against acquittal---Interference---Scope---Judgment of acquittal is to be interfered only when there are compelling and substantial reasons for doing so.

Shahid Hameed Qureshi, Addl. A.G. for Appellant.

Marghoob Hassan for Respondents.

2021 Y L R 202

[Peshawar]

Before Wiqar Ahmad, J

SHAH ZAL---Appellant

Versus

The STATE---Respondent

Judicial Criminal Appeal No. 1184-P with Criminal Miscellaneous No. 682-P of 2019, decided on 23rd December, 2019.

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

----Ss. 302, 307 & 34---Frontier Crimes Regulation (III of 1901), Regln. 11 [since repealed]---Constitution of Pakistan, Art.264---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Criminal reference to Council of Elders---Effect or repeal of laws---Accused was charged that he and co-accused committed triple murder---Court of Political Agent convicted the accused to fourteen years rigorous imprisonment under S.302, P.P.C., read with S.11 of the Frontier Crimes Regulation, 1901 (since repealed)---Accused was also convicted under S.307, P.P.C., and awarded sentence of ten years---Sentences were ordered to run consecutively---On behalf of accused, it was alleged that since Frontier Crimes Regulations, 1901 had been repealed by way of 25th Constitutional Amendment, therefore the consecutive running of the sentences should be reviewed---Scope---No doubt the punishment awarded to the accused had attained finality before the promulgation of 25th Constitutional Amendment on 31.05.2018 and same shall be deemed to be protected under Art. 264 of the Constitution, despite repealed of the Frontier Crimes Regulation, 1901---Present appeal was also not maintainable as the sentence in the case had earlier been finalized till the Supreme Court and was therefore a past and closed transaction, which could not have been reopened by way of the present appeal---Right of filing second appeal before the High Court was neither available in the erstwhile regime nor in the dispensation put in place in the merged area after its merger with the province of Khyber Pakhtunkhwa---Second appeal in the case was also not maintainable---Present appeal was found to be meritless as well as non-maintainable therefore same was dismissed accordingly.

Muhammad Arif and another v. The State and another 1993 SCMR 1589; Wicks v. Director of Public Prosecutions (1947); Province of East Pakistan v. Sharafatullah PLD 1970 SC 514; Mubarak Shah v. The State 1990 PCr.LJ 1796; Sher Muhammad alias Shera v. The State PLD 1990 Kar. 271; Hakim Ali Zardari v. The State and another PLD 1998 SC 1; PLD 1967 SC 187; 1992 SCMR 602; 1996 SCMR 237 and Syed Masroor Shah and others v. The State PLD 2005 SC 173 rel.

(b) Appeal---

----Substantive right---Right of appeal was a substantive right, which could not be assumed unless expressly given by the statute.

Manzoor Ali and 39 others v. United Bank Limited 2005 SCMR 1785; Muhammad Azhar Siddique and others v. Federation of Pakistan and others PLD 2012 SC 774 and State Life Insurance Corporation of Pakistan through Chairman and others v. Mst. Sardar Begum and others 2017 SCMR 999 rel.

Abdul Hashim Khan for Appellant.

Syed Sikandar Hayat Shah, A.A.G. for the State.

2021 Y L R 254

[Peshawar]

Before Musarrat Hilali andAhmad Ali, JJ

ASAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 832-P of 2017, decided on 3rd December, 2019.

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

----S. 9(c)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Police Rules, 1934, R. 22.70---Transportation of narcotics---Withholding best evidence---Appreciation of evidence---Benefit of doubt---Contradictory evidence---Safe custody---Non-production of sample-bearer---Non-production of vehicle---Store room register, non-production of---Delay in sending samples to the Forensic Laboratory---Effect---Accused was alleged to have been apprehended during transportation of 28 kilograms of narcotics---Scribe of the FIR, who had affirmed receipt of murasila, had negated the stance of Investigating Officer regarding transmission of murasila along with case property---Complainant had stated that the contraband was handed over to the Moharrir for onward submission to the Forensic Laboratory, but Moharrir was not produced before the court---Constable who had taken the samples to the Forensic Laboratory was not examined during the trial---Second marginal witness to the recovery memo. was not examined for unknown reasons---Said important witnesses, being associated with the recovered contraband at the relevant time, were not produced before the Trial Court, therefore, adverse inference under Art. 129(g) of Qanun-e-Shahadat, 1984 could be drawn that had the witnesses entered into the witness box, they would not have supported the prosecution case---No record or any assertion was available on record to suggest that the samples and the case property were ever kept in malkhana---Samples were received in Forensic Laboratory with a considerable delay of about three days from an unnamed official---Vehicle from which the alleged recovery was effected was not produced before the court---High Court, while extending benefit of doubt to the accused, allowed his appeal.

2018 SCMR 2039 and 2019 SCMR 903 ref.

2019 SCMR 608 and Ikramullah and others v. The State 2015 SCMR 1002 rel.

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

----S. 9---Possession of narcotics---Safe custody---Scope---Where safe custody of the recovered substance or safe transmission of samples of the recovered substance was not proved by the prosecution through independent evidence, it could not be concluded that the prosecution had succeeded in establishing its case against the accused beyond reasonable doubt.

2017 PCr.LJ 14 rel.

(c) Criminal trial---

----Benefit of doubt---Scope---Slightest doubt in the prosecution case is sufficient to acquit an accused---Several circumstances creating doubts are not necessary for extending the benefit of doubt---Single circumstance, creating reasonable doubt in the prudent mind about the guilt of the accused, makes accused entitled to its benefit, not as a matter of grace and concession but as a matter of right.

2009 SCMR 230; 2011 SCMR 664; 2011 SCMR 646; PLD 1984 SC 433; 2012 MLD 1358; 2007 SCMR 1825; 2008 PCr.LJ 376; PLD 1994 Pesh. 114; PLD 2012 Pesh. 1; 1999 PCr.LJ 1087; 1997 SCMR 449; 2011 SCMR 820 and 2006 PCr.LJ 1002 ref.

Ms. Zohra Durrani for Appellant.

Ms. Sofia Noreen, A.A.G. for the State.

2021 Y L R 296

[Peshawar]

Before Ishtiaq Ibrahim and Muhammad Ayub Khan, JJ

SAJID KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 176-P of 2016, decided on 21st June, 2018.

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

----S. 9(c)---Possession of heroin---Appreciation of evidence---Benefit of doubt---Prosecution case was that twelve kilograms of heroin was recovered from the secret cavities of the vehicle driven by accused---Record showed that recovery was effected from the secret cavities of the vehicle made for particular purpose, however when the same were seen by the Trial Court, it was observed that no secret cavities in a structured form were found---When the case of the prosecution was of secret cavities especially made for the same and the observations of the Court were contrary to the same then the observations of the court had overriding effect upon the evidence of the prosecution---Complainant had admitted in his cross-examination that all the documents were prepared by a Police Official/witness, even the application for sending the sample to Forensic Science Laboratory was also authored by said Police Official---Said Police Official was the prosecution witness and had also signed recovery memo but he was not produced by the prosecution during the trial and was abandoned---Prosecution had failed to prove its case beyond shadow of reasonable doubt, in circumstances---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Possession of heroin---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Prosecution case was that twelve kilograms of heroin was recovered from the secret cavities of the vehicle driven by accused---There were material contradictions in the statements of prosecution witnesses with regard to shifting of accused and case property to the Police Station, the mode and manner of alleged recovery---Complainant had admitted that at the time of alleged recovery Police Official/ASI was incharge of police post while complainant said that he himself was incharge of another police post and he also stated that his police post was under the supervision of the police post where Police Official/ASI was posted and he being SI was working under the supervision of ASI---Prosecution had failed to prove its case beyond shadow of reasonable doubt, in circumstances---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)--- Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)---Seizure of narcotic---Appreciation of evidence---Benefit of doubt---Chemical analysis---Delay in sending samples of contraband for analysis---Effect---Prosecution case was that twelve kilograms heroin was recovered from the secret cavities of the vehicle driven by accused---Alleged recovery was effected on 14.05.2013 while the samples were received in Forensic Science Laboratory on 19.09.2013---During that interregnum in whose custody the samples were lying and secondly Foot Constable (mentioned in Forensic Science Laboratory Report) had not been examined by the prosecution in order to prove the safe custody and its onwards transmission to the Forensic Science Laboratory---Prosecution had been miserably failed to prove its case beyond shadow of reasonable doubt, in circumstances---Appeal against conviction was allowed, in circumstances.

Ikramullah v. The State 2015 SCMR 1002 rel.

Noor Alam Khan for Appellant.

Mujahid Ali, A.A.G. for the State.

2021 Y L R 341

[Peshawar (Abbottabad Bench)]

Before Ijaz Anwar and Shakeel Ahmad, JJ

MUHAMMAD NISAR---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Defence

and 6 others---Respondents

Writ Petition No.1249-A of 2018, decided on 7th January, 2020.

Constitution of Pakistan---

----Art. 199---Constitutional petition---"No Objection Certificate"---Implementation---Petitioner was aggrieved of authorities by not allowing development of Housing Society for which "No Objection Certificate" had already been issued---No response to petitioner from the side of authorities---Authorities assured the High Court that if petitioner would apply afresh to them for grant of "No Objection Certificate" and that on receiving any response, future line of action would be determined and the matter would be decided in the light of law settled by superior Courts---Effect---High Court directed the petitioner to approach the authorities---Constitutional petition was disposed of accordingly.

Fawad Saleh for Petitioner.

Masood Ahmad Khattak, Tauqeer-ur-Rehman, Assistant Attorney General, Usman Jilani and Fida Bahadur for Respondents.

2021 Y L R 391

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

KHALID MAHMOOD and 3 others---Petitioners

Versus

UMARA KHAN deceased through Legal Heirs and others---Respondents

C. R. No. 269-M of 2016 with C.M. No. 195 of 2018, decided on 26th February, 2020.

(a) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----S. 42---Mutation, reliance upon---Principle---When order of attestation of mutation cannot be produced in evidence, then such mutations cannot be relied upon for any purpose.

(b) Muslim Personal Law (Shariat Application) Act (V of 1962)---

----S. 6---Partition Act (IV of 1893), S.1---Qanun-e-Shahadat (10 of 1984), Art. 114---Suit for declaration, permanent injunction and partition---Estoppel, principle of---Muslim Personal Law (Shariat Application) Act, 1962---Applicability---Suit property was settled between predecessor-in-interest of parties through private partition and in year 1946, it was incorporated in revenue record--- Petitioners/plaintiffs sought partition of properties through Court in year 2011, which suit was concurrently decided against petitioners/plaintiffs by Trial Court as well as Lower Appellate Court---Validity---Parties to partition agreement had settled the matter through their mutual consent and did not challenge the same in their life time---Petitioners/plaintiffs were estopped from challenging the transaction of settlement---Provisions of Muslim Personal Law (Shariat Application) Act, 1962, were not given retrospective effect---Matters which were finalized earlier were supposed to be past and closed transactions and could not be allowed to be reopened, unless competent legislative authority of the area had provided otherwise---High Court declined to interfere in concurrent judgments and decree passed by two Courts below against petitioners/plaintiffs---Revision was dismissed, in circumstances.

PLD 2002 SC 823; 2007 SCMR 729; 2017 SCMR 1476; PLD 2013 Pesh. 38; Muhammad Anwar and others v. Khuda Yar and 25 others 2008 SCMR 905; PLD 1995 SC 131; 2017 YLR 1217; Anees A. Sheikh v. Col. (Retd.) Ghulam Masooq Qureshi 2005 SCMR 977; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Mst. Grana through legal heirs and others v. Sahib Kamala Bibi and others PLD 2014 SC 167; National Commission on Status of Women through Chairperson and others v. Government of Pakistan through Secretary Law and Justice and others PLD 2019 SC 218 and Sher Zada Khan v. The Commissioner (F.C.R.), Peshawar and 2 others PLD 1979 Pesh. 165 ref.

(c) West Pakistan (Dissolution) Order (1 of 1970)---

----Art. 4---"Malakand Protected Area"---Connotation---Through Art. 4 of West Pakistan (Dissolution) Order, 1970, provinces were re-established and Schedule to the Articles provided territorial limits of the Provinces---Connotation "Malakand Protected Area" was specifically used in Schedule to West Pakistan (Dissolution) Order, 1970.

Nija-ud-Din Yousafzai for Petitioners.

Basirullah, Bashirullah and Muhammad Hanif for Respondents.

2021 Y L R 433

[Peshawar]

Before Ishtiaq Ibrahim and Muhammad Naeem Anwar, JJ

TESCO through Chief Executive---Petitioner

Versus

OMER STEEL FURNACES through Muhammad Omer Bara and 3 others---Respondents

Writ Petition No. 2408-P of 2019, decided on 9th June, 2020.

Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----Ss. 12A & 38(3)---Electricity Act (IX of 1910), S.26---Limitation Act (IX of 1908), S. 14---Overbilling---Wrong forum---Exclusion of time---Petitioner company complained of overbilling but Electrical Inspector and National Electric Power Regulatory Authority Board passed orders against petitioner---Validity---Remedy was provided under S.12A of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, to person aggrieved from decision of Single Member of the Authority or from decision of Tribunal---Petitioner did not prefer any appeal under S.12A and instead there was an appeal under S.38(3) of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997---Even if time before wrong forum was excluded under S.14 of Limitation Act, 1908, even then appeal before the Authority was time barred---Period of delay remained unexplained and there was no justification by petitioner---Constitutional petition was dismissed, in circumstances.

Syed Shahid Shah for Petitioner.

Abdur Raheem Jadoon for Respondents.

2021 Y L R 449

[Peshawar]

Before Ahmad Ali, J

SHAH FAHAD---Applicant

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Application No. 3678-P of 2019, decided on 2nd January, 2020.

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

----S. 497---Penal Code (XLV of 1860), S. 337-B---Khyber Pakhtunkhwa Child Protection and Welfare Act (XIII of 2010), Ss. 53 & 2(1)(e)---Sexual abuse---"Child at risk"---Scope---Bail, grant of---Delayed FIR---Further inquiry---Scope---Accused was alleged to have tried to subject the minor daughter of complainant to sexual intercourse---Occurrence was reported after a delay of 6 hours without any explanation---Medical examination report of victim suggested that no sexual act was committed with her---Except solitary statement of complainant, no other incriminating evidence was available on record to prima facie connect the accused with the commission of crime---Victim did not fall under the definition of "child at risk" as provided in S.2(1)(e) of Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010, therefore, applicability of S.53 of Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010, was a begging question---Accused was a minor and his case called for further inquiry under S.497(2), Cr.P.C.---Petition for grant of bail was allowed.

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

----S. 497---Bail---Scope---Facts of the case need not be mentioned at bail stage.

Muhammad Shakeel v. The State PLD 2014 SC 458 ref.

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

----S. 497---Bail---Scope---Grant of bail does not mean acquittal of accused but only change of custody from Government agencies to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever required to be produced.

Haji Muhammad Nazir v. State 2008 SCMR 807 ref.

Gul Hussain Khilji for Applicant.

Rab Nawaz Khan, A.A.G. for the State.

Irfan Ali Yousafzai for the Complainant.

2021 Y L R 468

[Peshawar]

Before Ikramullah Khan, J

TAUFEEQ SAID---Petitioner

Versus

The STATE and another---Respondents

Cr. M.B.A. No. 1118-P of 2020, decided on 7th May, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497--- Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), Ss.9(d), 28, 2(e) & 59---Possession of narcotics, power of entry, search, seizure and arrest without warrant, authorized officer, repeal and savings---Bail, refusal of---Habitual offender---Scope---Accused was alleged to have been found in possession of 3330 grams of charas---Accused was arrested red-handed on the spot---Prosecution case was duly corroborated by the marginal witnesses present on the spot coupled with the positive report of Forensic Laboratory---Contention of petitioner was that at the time of registration of FIR, the local police was not authorised to search, seize or arrest a person under S. 28 of Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019, rather the powers were vested in the "Authorised Officer"---No doubt, at the time of registration of FIR, local police was not empowered to search, seize and arrest under S.28 of Khyber Pakhtunkhwa Control of Narcotics Substances Act, 2019, but newly added subsection (3) of S.59 of Khyber Pakhtunkhwa Control of Narcotics Substances Act, 2019, provided that all actions done and proceedings conducted by local police from 4th September, 2019 till 31st January, 2020 were legal---Accused had also been charged in other criminal cases of similar nature which depicted that he was a habitual offender and dealt in narcotics business---Petition for grant of bail was dismissed, in circumstances.

Writ Petition No.7254-P of 2019, decided on 17.1.2020 distinguished.

Abdul Rashid Pirzada for Petitioner.

Ms. Sophia Noreen for the State.

2021 Y L R 570

[Peshawar (Abbottabad Bench)]

Before Mohammad Ibrahim Khan, J

ZAHID AKHTAR---Petitioner

Versus

Mst. SAIMA ZIA and 6 others---Respondents

Writ Petition No. 1619-A of 2019, decided on 24th September, 2020.

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

----S. 5, Sched.---Suit for dissolution of marriage on the basis of khula---Gift of gold ornaments---Scope---Respondent brought a suit against the petitioner for dissolution of marriage on the basis of khula and recovery of monthly maintenance allowance for the minors---Decree for dissolution of marriage on the basis of khula was granted in favour of the wife in lieu of dower i.e. house and ten tolas gold ornaments---Appellate Court partially allowed the respondent's appeal by modifying the judgment of trial court to the extent that the respondent was not liable to return ten tolas gold ornaments to the petitioner---Validity---House mentioned in the nikahnama was sold by the petitioner and the amount of sale consideration was received by him and not by the respondent---Gold in question was given to the respondent besides dower, meaning thereby that the same was given to her as a gift and that it could not be reclaimed once given with free will and consent---Monthly maintenance allowance of minors was kept intact however, its annual increase was reduced from 20% to 10%---Constitutional petition was disposed of accordingly.

(b) Islamic law---

----Gift---Scope---Gift once given with free will and consent by donor cannot be reclaimed.

Haq Nawaz for Petitioner.

Khalid Rehman Qureshi for Respondents.

2021 Y L R 589

[Peshawar]

Before Waqar Ahmad Seth, C.J. and Muhammad Nasir Mahfooz, J

MAAZ ULLAH---Petitioner

Versus

SECRETARY INTERIOR, GOVERNMENT OF PAKISTAN, ISLAMABAD and 3 others---Respondents

Writ Petition No. 2795-P of 2020, decided on 29th September, 2020.

Frontier Corps Ordinance (XXVI of 1959)---

----S. 9(p)---Constitution of Pakistan, Art. 199---Constitutional petition---Punishment in less heinous offences---Non-availability of sufficient material before High Court---Effect---Petitioner sought acquittal and setting aside of his conviction besides his dismissal from service---Validity---Serious allegations of fraud and corruption were levelled against the petitioner and he was found involved in issuance of fake appointment letters in Frontier Corps by receiving monetary gain---Prior to his conviction and dismissal from service he was charge-sheeted and thereafter statement of witnesses were recorded by the court of inquiry and final order was issued, duly endorsed by the Inspector General, Frontier Corps---Petition lacked sufficient documentary proof to hold that the proceedings were defective or that the punishments of conviction and dismissal from service were not compatible with the allegations levelled against him---Constitutional petition was dismissed, in circumstances.

Muhammad Rafiq Mohmand for Petitioner.

Qazi Babar Irshad, Addl. Attorney General for Federation and Nasir Mahmood for Respondents Nos. 2 to 4.

2021 Y L R 607

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

REHMAT HAYAT and 11 others---Petitioners

Versus

RAFIQ AHMAD KHAN and 6 others---Respondents

Civil Revision No. 447-M of 2018, decided on 18th September, 2020.

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

----O. VII R. 11---Rejection of plaint---Adjudication of application under O.VII, R.11, C.P.C.---Exercise of powers under O.VII, R.11, C.P.C.---Scope---At stage of adjudicating application for rejection of plaint under O.VII, R.11, C.P.C., contents of plaint should be presumed to be factually correct, and where after such presumption, plaint disclosed cause of action, then plaint could not be rejected.

Muhammad Saleemullah and others v. Additional District Judge, Gujranwala and others PLD 2005 SC 511 and Qayum Nawaz through LRs v. Allah Nawaz through LRs 2012 CLC 1726 rel.

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

----O. VII, R. 11---Rejection of plaint on ground of limitation---Scope---Limitation was a mix question of law and fact and question of limitation had to be resolved by allowing parties to record evidence in support of plaint.

Haji Abdul Sattar and others v. Farooq Inayat and others 2013 SCMR 1493 rel.

Ali Baz Khan for Petitioners.

Akhtar Munir Khan and Aurangzeb for Respondents.

2021 Y L R 646

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali, J

MUHAMMAD KAMAL---Petitioner

Versus

JAMSHID KHAN and another---Respondents

Criminal Revision No. 71-M of 2019, decided on 9th October, 2019.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 114, 148 & 149---Juvenile Justice System Ordinance (XXII of 2000), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly--- Age of accused, determination of---Accused along with the acquitted accused were charged for committing murder of two persons of the complainant party---Accused had alleged that he was minor at the time of alleged offence---Scope---Trial Court had conducted an inquiry regarding the age of the accused and finally came to the conclusion that at the time of commission of the offence, he was major---Validity---Record showed that the accused was charged for the murder of two persons and attempting at the lives of complainant and his cousins by causing firearm injuries to them---Computerized National Identity Card issued to the accused showed his date of birth recorded as 01.01.1991---Representative of National Data and Registration Authority (NADRA) had also produced the "Family Tree" of father of the accused, according to which father of accused had four sons and two daughters---Details of dates of birth of his children were mentioned in the said "Family Tree", which also showed date of birth of the accused as 01.01.1991---Accused in support of his age had produced register dakhil kharij, however, the same did not inspire confidence and could not be given preference over his age recorded in the NADRA record---Accused had himself never claimed his juvenility before the police at the time of investigation nor during the trial---Said fact was not agitated even in appeal but was noticed by the Court while deciding his appeal that there was an apparent disparity in his date of birth which was recorded in his charge-sheet and statement under S.342, Cr.P.C. being one and the same---High Court, as an abundant caution remitted the case to the Trial Court for determining the age of the accused---Accused, on remand, had filed a civil suit for correction of his date of birth which appeared to have been filed on the basis of mala fide---Medical Report showed the accused more than 25 years of age---Date of birth mentioned in the CNIC inspired confidence which was rightly considered by Trial Court for determination of his age---Revision petition having no merits was accordingly dismissed.

Nasib Ahmad v. The State PLD 2000 SC 813; Muhammad Akram v. Muhammad Haleem alias Hamayun and others 2004 SCMR 218; Muhammad Zakir v. The State and another 2004 SCMR 121; Muhammad Aslam v. The State and another PLD 2009 SC 777 and OM Parkash v. State of Rajasthan and another 2012 SCMR 1400 rel.

Anwar Hussain Khan for Petitioner.

Wilayat Ali Khan, A.A.G. for the State.

Muhammad Raziq Khan for Respondent No.1.

2021 Y L R 662

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmed, J

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

Versus

JAVED IQBAL---Respondent

Criminal Appeal No. 16-A of 2011, decided on 23rd June, 2020.

(a) Administration of justice---

----View of facts or conclusion formed by a Trial Court is not binding on the Court of appeal---Principles.

Abdul Majid v. Superintendent Remembrance of Legal Affairs, Government of Pakistan PLD 1964 SC 422; State v. Anwar Saifullah Khan PLD 2016 SC 276 and Ghulam Sikandar and another v. Mamrez Khan and another PLD 1985 SC 11 rel.

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

----S. 9(c)---Possession and trafficking Narcotics---Appreciation of evidence---Appeal against acquittal---Prosecution case was that 5200 grams charas in five packets wrapped in newspapers was recovered from the possession of accused, 4/4 grams chars was separated from each packet for chemical analysis while remaining 5180 grams was sealed into separate parcel---Record showed that only four (04) grams of charas was taken from the five (05) packets of charas---Statement of Seizing Officer transpired that the samples were not taken from each slab/rod/cake and piece of recovered substance for chemical analysis---Said fact created doubts regarding quantity collected from each slab, cake and pieces---After allegedly recovering the charas from possession of the accused the parcels of the recovered substance were sealed with a monogram reading as WK, which was neither the abbreviation of the name of Seizing Officer/Recovery Officer nor Investigating Officer---Prosecution witnesses had not been able to advance any explanation whatsoever as to why Recovery Officer had not put his own monogram on the seals of the parcels prepared by him and as to why he had used the monogram of some other officer, whose posting was even not shown at police station at the relevant time---Prosecution had not been able to show that the grounds, on which the Trial Court had based acquittal of the accused, were unreasonable, perverse, unsound or manifestly wrong, calling for interference---Appeal against acquittal was dismissed, in circumstances.

State v. Amir Ali and others PLD 1967 Kar. 440 rel.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 4 & 5---Possession and trafficking narcotics---Delay in sending samples of contraband for chemical analysis---Effect---Admittedly, recovery of contraband was made on 18.01.2008---Application for sending the samples to Chemical Examiner was drawn and handed over to Police Constable/witness on the same day as admitted by him in his cross-examination---Sample was taken by hand to Forensic Science Laboratory on 23.01.2008---No reason whatsoever was given by the said prosecution witness for retaining the samples with him for a period of five (05) days, therefore, the delay in taking the sample to the laboratory was another important defect in the prosecution case---Nothing on record to show that the samples of charas remained in safe custody during intervening period. (i.e. 18.01.2008 to 23.01.2008), which made Forensic Science Laboratory Report highly doubtful---Any doubt arising in the links of the chain of prosecution story, benefit of the same must go to the accused---Circumstances established that the prosecution had not been able to show that the grounds on which the Trial Court had based acquittal of the present accused were unreasonable, perverse, unsound or manifestly wrong, calling for interference---Appeal against acquittal was dismissed, in circumstances.

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

----S. 9(c)---Possession and trafficking Narcotics---Appreciation of evidence---Appeal against acquittal---Non-production of roznamcha entry/Daily Diary---Effect---Prosecution case was that 5200 grams charas in five packets wrapped in newspapers was recovered from the possession of accused, 4/4 grams charas was separated from each packet for chemical analysis while remaining 5180 grams was sealed into separate parcel---Record showed that prosecution in support of its case had not produced copy of roznamcha entry of leaving the police station for patrolling, which defect was sufficient to knock down the entire prosecution story as the base of the prosecution story for proceedings for patrolling was not supported by the documentary evidence---Production of entry of the Daily Diary report in the present case was more essential to establish the case as the entry in the roznamcha was for specific purpose of patrolling in pursuance thereof nakabandi was laid and accused was apprehended along with contraband---Circumstances established that the prosecution had not been able to show that the grounds on which the Trial Court had based acquittal of the present accused were unreasonable, perverse, unsound or manifestly wrong, calling for interference---Appeal against acquittal was dismissed, in circumstances.

Qalandro alias Nazro v. State 1997 MLD 1632 and Aijaz Ali v. State 2001 YLR 1493 rel.

Raja Muhammad Zubair for the State.

Fazal-e-Haq Abbasi for Respondents.

2021 Y L R 703

[Peshawar (Bannu Bench)]

Before Sahibzada Asadullah, J

ISMAIL KHAN and 8 others---Petitioners

Versus

Mst. SHAHNAZ BEGUM and 7 others---Respondents

Writ Petition No. 159-B of 2019, decided on 30th April, 2020.

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

----Arts. 117 & 120---Civil Procedure Code (V of 1908), S. 12(2)---Transaction by Parda Nasheen lady--- Onus to prove--- Principle--- Judgment, setting aside of---Misrepresentation and fraud---Plaintiffs/petitioners claimed to be owners of suit property on the basis of gift deed executed in their favour by defendant/respondent who was their sister---Trial Court decreed suit in favour of plaintiffs/petitioners on the basis of conceding statement---Defendant/respondent denied making any conceding statement and sought setting aside of judgment on the plea of misrepresentation and fraud---Trial Court in exercise of jurisdiction under S.12(2), C.P.C. set aside judgment and decree passed against defendant/ respondent, which order was maintained by Lower Appellate Court---Validity---Judgment and decree in question was passed solely on the basis of consenting statement of defendant/respondent but neither she appeared during trial nor her statement was recorded---When defendant/ respondent came to know regarding fraud having been committed, she rushed to Court there and then and submitted application under S.12(2), C.P.C.---Heavy onus to prove was on transferee/beneficiary of transaction with Parda Nasheen lady---High Court declined to interfere in concurrent findings of facts by two Courts below as the same were result of proper application of judicial mind---Constitutional petition was dismissed, in circumstances.

Mst. Rasheeda Bibi and others v. Mukhtar Ahmad and others 2008 SCMR 1384; Mirza Abid Baig v. Sahid Sabir (deceased) 2020 SCMR 601; Phul Peer Shah v. Hafeez Fatima 2016 SCMR 1225; Mian Allah Ditta through L.Rs. v. Mst. Sakina Bibi 2013 SCMR 868; Mst. Hussain Bibi and others v. Barkat Ali and others 2004 SCMR 1391 and Ghulam Ali and 2 others v. Mst.Ghulam Sarwar Naqvi PLD 1990 SC 1 rel.

Farman Ali Khan for Petitioners.

Hafiz Muhammad Hanif and Farooq Khan Surani for Respondents.

2021 Y L R 736

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

MUHAMMAD SHAH and 2 others---Petitioners

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 6 others---Respondents

Writ Petition No. 2498-P of 2011, decided on 17th September, 2020.

Constitution of Pakistan---

----Art. 199---Standard Contract Agreement for Procurement of Work, Para 7, cl. 5A (vide Notification No.SOG/ W&S/11-129/2005 dated 30-6-2005) Constitutional jurisdiction of High Court---Public procurement/tenders---Disputed questions of fact---Scope---Petitioners, who were public contractors, sought that direction be given to Provincial Communication and Works Department to pay them escalation amount for increased costs after completion of project---Validity---Petitioners had not been granted extension of time for completing of project, and it was difficult for High Court to determine whether or not fault for late completion of works was of the petitioners and determination of such question required factual inquiry which was beyond scope of jurisdiction of High Court under Art. 199 of Constitution---Constitutional petition being not maintainable, was dismissed, in circumstances.

1986 SCMR 1096; 1998 SCMR 2268; 2005 SCMR 678; PLD 2010 Lah. 404; 1999 SCMR 121; 2000 PTD 478 and 2001 MLD 18 ref.

Ahmad Developers v. Muhammad Saleh 2010 SCMR 1057; Suo Motu Case No.13 of 2007 PLD 2009 SC 217; Sardar Naseer Ahmad Mooiani v. Chief Executive/Chief Secretary Government of Baluchistan Quettta 2007 SCMR 105; Akcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44 and Project Director, Balochistan Minor Irrigation and Agricultural Development Project Quetta Cantt: v. Messrs Murad Ali and Company 1999 SCMR 121 rel.

Malik Muhammad Ajmal Khan for Petitioners.

Sohail Sultan, Astt: A.G. for Respondents.

2021 Y L R 759

[Peshawar]

Before Ijaz Anwar, J

Mst. KHADIJA BEGUM---Petitioner

Versus

CHAIRMAN, BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, PESHAWAR and 2 others---Respondents

Civil Revision No. 352-P of 2019, decided on 6th March, 2020.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Correction of date of birth in record of the Board of Education---Contention of the petitioner/plaintiff was that the date of birth incorporated in her Computerized National Identity Card (CNIC ) was correct as her school record was lost due to floods---Held, that petitioner, while applying for her CNIC, was required to submit her Form-B or matriculation certificate in support of her date of birth---If the petitioner had showed herself as illiterate then her date of birth was to be recorded on her oral assertion---Petitioner had not produced any official Form to National and Database Registration Authority (NADRA), to unfold the fact as to how the entry of her date of birth in her CNIC was made---Petitioner had also failed to produce the school record to substantiate that the error had occurred at the time of entry in the record of Board of Education---Petitioner though alleged that the school record was lost due to floods, however, her admission application/form of matriculation showed that she herself had entered her date of birth, which suggested that said entry in the school record was carried forward in the authorities' record because, by then, the record was available and was not lost---Petitioner had also failed to produce Dakhil Register which would have been considered for the correction---Appellate Court had rightly set aside the judgment and decree passed by the Trial Court---Revision petition was dismissed, in circumstances.

Khurshid and others v. Umar Bakhsh though L.Rs. 2007 SCMR 1781; Amir Shah v. Ziarat Gul 1998 SCMR 593; Abdul Khaliq and another v. Maulvi Muhammad Noor and others PLD 2005 SC 962; Malik Muhammad Faisal and another v. State Life Insurance Corporation through Chairman and 2 others 2008 SCMR 456; Muhammad Malik Afzal and others v. Muhammad Noor through L.Rs. 2012 YLR 161 and Federal Board of Intermediate and Secondary Education through Chairman v. Abeer Masood 2017 CLC 1085 distinguished.

2005 SCMR 962 and Muhammad Arshad and another v. Mian Noor Ahmad and others 2008 SCMR 713 ref.

Muhammad Farooq Afridi for Petitioner.

Ms. Shakila Begum for Respondents.

2021 Y L R 777

[Peshawar (Bannu Bench)]

Before Ikramullah Khan and Sahibzada Asadullah, JJ

Mst. SHAZIA BIBI alias SHARJIKA BIBI---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 280-B of 2017, decided on 13th November, 2019.

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

----Ss. 302, 201, 120-B & 34---Qatl-i-amd, causing disappearance of evidence of offence, criminal conspiracy, common intention---Appreciation of evidence---Benefit of doubt---Accused lady was charged for committing murder of her husband in collusion with her paramour---Accused allegedly confessed her guilt before the Judicial Magistrate, where she introduced co-accused with negative relations---Prosecution would have to establish on record that it was none else but the accused---Prosecution lost its honour, when it concealed the truth regarding her arrest and investigation before registration of case and after her confinement in the judicial lockup---Accused admitted that no mobile was found in her possession and even the prosecution could not collect the call data record to link her with the co-accused---Rest of the inmates did not charge her but only the interested ones---Complainant stated that when he arrived the room the deceased was lying in serious condition with a .30 bore pistol in his hand, so it further disturbed that how the pistol came in his hand---Mode and manner of killing was in mystery---Investigating Officer stated that he collected blood stained earth beneath the cot but why the mattress and charpaye were not stained with blood---Prosecution failed in all respects to tell as to who killed the deceased and that burden was never shifted to the accused when confession was later on retracted---Circumstances established that prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

Sadi Ahmad and another v. The State 2019 SCMR 1220 and Muhammad Azhar Hussain and another v. The State and another PLD 2019 SC 595 rel.

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

----Ss. 302, 201, 120-B & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, causing disappearance of evidence of offence, criminal conspiracy, common intention---Appreciation of evidence---Confessional statement of accused lady---Scope---Accused was charged for committing murder of her husband in collusion with her paramour---Confessional statement showed that the questionnaire was in a printed performa with Yes and No replies, neither the necessary questions were asked nor the Magistrate could explain in the way he was supposed to, so much so he did not identify himself to accused---Lady was rushed to him in unholy haste and the time provided for thinking was only five minutes, what in a hurry the Magistrate was, that left him unrealized that the accused before him was a house wife of tender age---Judicial Magistrate could not explain that the accused was made to understand in Pushto being uneducated---No opportunity was provided to consult some one of her trust, rather accused was examined in an atmosphere of tension and uncertainty, not only she was confused but the Judicial Magistrate was also confused, who in his examination in chief constantly stated "He" instead of "She" which later on was corrected and even that found mentioned in the certificate---No sanctity could be attached to such confession---Judicial Magistrate had mentioned that after recording confession accused was handed over to the Naib Court who lodged her in the judicial lockup---Magistrate stated that from District Courts the accused was taken to the Central Jail and from there proceeded to the house of absconding co-accused for house search, so the Magistrate also went telling lie---Said conduct of Judicial Magistrate had seriously questioned the integrity of his office and status and his conduct could neither be ignored nor condoned---Circumstances established that prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

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

----Ss. 302, 201, 120-B & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, causing disappearance of evidence of offence, criminal conspiracy, common intention---Appreciation of evidence---Motive not proved---Effect---Accused lady was charged for committing murder of her husband in collusion with her paramour---Accused allegedly confessed her guilt before the Judicial Magistrate, where the cause of the death was given as love affair with co-accused---Involvement of co-accused had been disbelieved by the court therefore, the accused could not be held responsible for commission of the offence as there was no cause for her to commit the murder---Admittedly, complainant stated that accused was a house wife and no mobile was there in her possession to contact the co-accused---Prosecution also did not collect the Call Data Record to substantiate the affairs between the two, even otherwise the mode and manner of the occurrence was shrouded in mystery and till the end it could not be ascertained as to how and who was the actual culprit and as such the entire case was the outcome of hypothesis without any legal proof and when that was the situation then the benefit of doubt, if any, must be extended to the accused---Circumstances established that prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

Muhammad Shoaib Khan Saduzai for Appellant.

Shahid Hameed Qurashi, Addl. A.G. for the State.

Noorzada Khan Ahmadzai for Respondents.

2021 Y L R 803

[Peshawar]

Before Muhammad Naeem Anwar, J

FAQIR SHAH and another---Petitioners

Versus

Mst. BAKHT BIBI (Widow) and 7 others---Respondents

Civil Revision Petition No. 946-P of 2012, decided on 22nd June, 2020.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Suit for pre-emption---Talb-e-Mawathibat---Scope and proof---Non- production of informer---Effect---Petitioners/plaintiffs contended that non-production of informer was of no consequence as he had proved the Talbs in accordance with law---Held, that neither the informer nor anybody else, in whose presence Talb-e-Mawathibat was allegedly made, was produced as at the time of making said Talb, several persons were assembled on the return of one of the petitioners after performing Hajj---Talb-e-Mawathibat could easily be proved by production of anyone from the persons/witnesses in whose presence the Talb was made but, in the present case, except the son of one of the petitioners, no one else was produced---No reasonable or plausible explanation was given by the petitioner for non-production of the informer---Petitioners had failed to prove their case---No illegality or infirmity was found in the impugned judgments and decrees passed by both the Courts below---Revision petition was dismissed, under circumstances.

2004 YLR 655 distinguished.

Muhammad Mal Khan's case 2002 SCMR 235 and Abdul Reman v. Haji Ghazan Khan 2007 SCMR 1491 ref.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13(3)---Suit for pre-emption---Talb-e-Ishhad---Separate notice to each vendee (defendant) not sent---Postman not produced as witness---Effect---Petitioners/plaintiffs challenged registered deed whereby two vendees(defendants) had purchased the property, but they had not sent separate notices, through registered post with Acknowledgment-Due (AD) cards, as required in terms of S.13(3) of Khyber Pakhtunkhwa Pre-emption Act, 1987---One of the respondents had categorically denied receiving any notice in the written-statement whereas one of witnesses of the petitioners had admitted the said fact in the cross-examination---When receipt of notices was denied by the defendant then production of postman as petitioners' witness was sine qua non---Sending notice through registered post without Acknowledgment Due (AD) could not be construed to have met the requirement of S.13(3) of Khyber Pakhtunkhwa Pre-emption Act, 1987---Revision petition was dismissed.

Sultan v. Noor Asghar 2020 SCMR 682 and Basharat Ali Khan v. Muhammad Akbar 2017 SCMR 309 ref.

Shah Baz Khan for Petitioners.

Majid Karim for Respondents.

2021 Y L R 841

[Peshawar]

Before Waqar Ahmad Seth, C.J.

MUALLIM---Petitioner

Versus

STATE---Respondent

Criminal Miscellaneous Bail Application No. 580-P of 2020, decided on 30th March, 2020.

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

----S.497---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), Ss. 9(d) & 2(e)---Transportation of narcotics---Bail, grant of---Delay in sending samples to Forensic Laboratory---Seizing officer being below the rank of Sub-Inspector--- Effect--- Accused was alleged to have been apprehended while transporting 10 kilograms of charas--- Accused was not required to the local police for further investigation---No prospect of the commencement of his trial in the near future existed, let alone its conclusion---Samples was dispatched to the Forensic Laboratory after an unexplained delay of 4 days---Seizing officer was below the rank of Sub-Inspector---Mere heinousness of crime did not disentitle the accused to the concession of bail when ultimate conviction could repair the wrong caused by mistaken relief of bail---Petition was allowed, in circumstances

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

----S. 497---Bail---Heinous nature of crime---Scope---Heinousness of crime will not disentitle an accused to the concession of bail when ultimate conviction, if any, can repair the wrong caused by the mistaken relief of bail.

Miss Shabbina Noor for Petitioner.

Atif Ali Khan, A.A.G. for the State.

2021 Y L R 872

[Peshawar (Banu Bench)]

Before Ms. Musarrat Hilali and Sahibzada Asadullah, JJ

NAIK NAWAZ alias SHEKAR---Petitioner

Versus

The STATE and 3 others---Respondents

Criminal Appeal No. 345-B with Murder Reference No. 10-B of 2019, decided on 28th September, 2020.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Chance witness---Scope---Accused was charged that he and co-accused made firing upon the complainant party, due to which the nephew of complainant and another person were hit and died, whereas three persons sustained injuries---Motive was shown to be the previous blood feud between the parties---Complainant stated that at the time of incident lights were glowing where he could see the accused and the deceased at the time of incident and prior to it---Motive was though stated to be blood feud between the parties where brother of the complainant was murdered leading to a charge against the accused/assailants and that the deceased fell prey to the same, but the presence of the complainant had objection, that why he was not targeted being the prime target visible to the assailants as the bulbs were on---Complainant was still to answer that why other male members of his house did not accompany to the spot/musical show as on one hand it was pitched dark and on the other, they had a blood feud---Complainant admitted that his three sons were present at home and his other brother was also living in the said house and were present at the time when the complainant left the house, but his coming alone tells otherwise and it casted doubt on his veracity---Complainant as well as the injured eye-witnesses admitted that the number of the people gathered on the spot would be more than 80/90---Admittedly the dancing 'Athan' was in progress in a circle---Assailants resorted to indiscriminate firing and that why the people dancing in circle intervening between the parties did not receive firearm injuries, as in that eventuality numerous people should have received injuries, that too when four persons duly armed with sophisticated weapons were firing---Deceased had left for the musical show after performing his Isha Prayer and that when the assailants were also present at the place of incident, right from the beginning, i.e. when the program was not yet started then what precluded the accused/assailants to kill the deceased soon after reaching to the place of incident and that what kept them waiting till arrival of the complainant---Said situation told nothing but that the complainant was a chance and interested witness---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

Mst. Sughra Begum and another v. Qaiser Parvez and others 2015 SCMR 1142 rel.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Unnatural conduct of scribe---Scope---Accused was charged that he along with his co-accused made firing upon the complainant party, due to which the nephew of complainant and another person were hit and died, whereas three persons sustained injuries---Record showed that the deceased was allegedly taken to the Police Station where the complainant reported the matter---On completion of the report rest of the injured and other deceased were brought to the Police Station---Inspector penned down the report and prepared the injury sheet along with inquest report of the deceased and it was thereafter when the other three injured and deceased were brought to the Police Station, their injury sheets and inquest report were prepared---Question arose as to when the injured persons reached the Police Station and they were conscious and were capable to speak, why the report was not verified from them and as to why none of the injured was put a rider to the report---Said conduct of the scribe went unnatural when on one hand he did not ask for verification of the report from the injured whereas on the other he did not include S.324, P.P.C. to the report rather Ss.302/34 was mentioned---Had Inspector been a truthful witness he would have added S.324, P.P.C., on arrival of the injured witnesses to the Police Station---Scribe stated that as the FIR was a carbon copy and while making entries in the original FIR Ss.302/ 324/34, P.P.C. were inserted but it found missing in the carbon copy, which he later on corrected---Record revealed that S.324, P.P.C. was later on inserted, without any initial of the scribe---Said particular aspect of the case casted doubt on veracity of the complainant as well as the scribe---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Accused was charged that he and co-accused made firing upon the complainant party, due to which the nephew of complainant and another person were hit and died, whereas three persons sustained injuries---Admittedly, the report was made at 02:00 a.m. in the Police Station, whereas the dead-bodies along with the injured reached to the hospital at 03:15---Prosecution was yet to explain as to why it took 1-hour and 15-minutes to reach the hospital which lay in a close proximity and that how all the injured were examined by the doctor at 03:15 a.m.---Medical Officer stated that at the time when the injured were brought to the hospital, he was in his house and it was after the lapse of 15/20 minutes that he reached and examined the injuries of the injured to whom his paramedical staff had already provided the first aid---Witness stated that when he brought the injured to the hospital it was the doctor and none else, who examined and treated them---Said conflict between the two told nothing but that the real events were suppressed by the witnesses---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Unnatural conduct of complainant--- Scope--- Accused was charged that he and co-accused made firing upon the complainant party, due to which the nephew of complainant and another person were hit and died, whereas three persons sustained injuries---Complainant stated that soon after lodging the report he left the hospital, had complainant been present with the dead-body he would have definitely accompanied to the hospital---In the column of identification, name of two other persons/witnesses were mentioned as the identifiers---One of the said witness stated that he received information regarding the incident at his village and reached to the spot wherefrom he accompanied the dead-body to the Police Station---Incident occurred in the odd hours of the night, complainant went from his house to the place of occurrence all alone and the relatives and family members were not informed by the complainant then what brought the said witness to the place of incident along with brother of complainant---Cumulative effect of all that led to conclude that the incident went un-witnessed and on arrival of the deceased and injured to the Police Station the complainant along with the identifiers reached there---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 rel.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of incriminating material---Scope---Accused was charged that he and co-accused made firing upon the complainant party, due to which the nephew of complainant and another person were hit and died, whereas three persons sustained injuries---Record showed that the Investigating Officer visited the spot and on pointation of the complainant blood stained earth was recovered from respective places of both the deceased along with 56-empties of 7.62 bore---Investigating Officer stated that he initially visited the spot on 27.10.2016, and recovered blood stained earth but postponed further proceedings till next morning when on availability of complainant the site-plan was prepared, however, the complainant stated that on the night of occurrence he visited the spot in the company of the Investigating Officer, as it was pitch dark, so the spot could not be examined---Said variation between the two troubled the prosecution case, despite the fact that the Investigating Officer prepared the site-plan at the instance of the complainant but neither the cots were shown in the site-plan nor the musical instruments found mentioned, or the people gathered there at the night of incident---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay in recording the statements of witnesses---Scope---Accused was charged that he along with his co-accused made firing upon the complainant party, due to which the nephew of complainant and another person were hit and died, whereas three persons sustained injuries---Record showed that one injured was discharged from the hospital whereas the other injured was discharged two days earlier---Despite the fact that injured were conscious at the time of their examination by the doctor and thereafter, but the Investigating Officer did not take the pains to record their statements---One of the injured stated that they were called by the Investigating Officer to the baithak of complainant, where the Investigating Officer was present and they were shown the statement of the complainant, the siteplan along with other documents and were directed to record their statement in line with that of the complainant---Such belated statements of the prosecution witnesses told nothing but they were prevailed upon by the complainant to support his charge against the accused---Statements of said witnesses had out-rightly been rejected---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324 & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Withholding material witness---Effect---Accused was charged that he and co-accused made firing upon the complainant party, due to which the nephew of complainant and another person were hit and died, whereas three persons sustained injuries---Record showed that the person who had arranged the musical show also got injured, who was medically examined and discharged from the hospital on the day of incident, when the doctor declared his injury as simple---Neither the Investigating Officer recorded his statement nor he was produced as a prosecution witness to confirm the stance of the complainant and was abandoned as won over---Said injured was the best witness to unearth the truth and his non production meant that he was not ready to support the false charge of the complainant---Article 129(g) of the Qanun-e-Shahadat, 1984 catered for the situation---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

Riaz Ahmad v. The State 2010 SCMR 846 rel.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay in sending the crime empties for analysis---Scope---Accused was charged that he and co-accused made firing upon the complainant party, due to which the nephew of complainant and another person were hit and died, whereas three persons sustained injuries---In the present case, the empties were recovered on 27.10.2016 along with blood stained earth, but those were received on 17.11.2016 and 08.11.2016 respectively---Question arose when said recoveries were effected on the same day, then why the empties were received after a delay of 20-days, prosecution could not explain as to where the empties were lying till its dispatch and receipt to the office of the Chemical Examiner---Said fact failed to establish its safe custody on record, as neither the moharrir of the concerned Police Station was produced nor the abstract from register No.19 of the concerned Police Station was placed on file---Empties and its report had lost its worth in circumstances, no weight could be attached to the opinion tendered by the Forensic Sciences Laboratory---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Motive not proved---Scope---Accused was charged that he and co-accused made firing upon the complainant party, due to which the nephew of complainant and another person were hit and died, whereas three persons sustained injuries---Motive was stated to be blood feud between the parties and it was stressed time and again that the accused had the motive to commit the offence---Prosecution could not produce convincing evidence in that respect and even the Investigating Officer did not record the statements of independent witnesses which could prove the motive on record---Circumstances established that the prosecution had failed to prove its case against the accused--- Appeal against conviction was allowed, in circumstances.

(j) Criminal trial---

----Motive---Scope---Prosecution was not required to prove the motive in each and every case, absence of proof or failure would not help the accused---Once the prosecution alleged a motive then it was under obligation to prove the same failing which none else but the prosecution would suffer.

Hakim Ali v. The State 1971 SCMR 432; Amin Ullah v. The State PLD 1976 SC 629 and Ali Bux and others v. The State 2018 SCMR 354 rel.

(k) Criminal trial---

----Absconsion---Scope---Mere absconding could not be taken against the accused and even conviction could not be awarded on that score alone.

Anwar-ul-Haq and Sawal Nazir for Petitioner.

Haji Hamayun Khan Wazir for Respondents.

Shahid Hameed Qureshi Addl: A.G. for the State.

2021 Y L R 899

[Peshawar (Bannu Bench)]

Before Ms. Musarrat Hilali and Sahibzada Asadullah, JJ

HANIFULLAH alias PENTAR and 4 others---Appellants

Versus

HABIB UR REHMAN and 3 others---Respondents

Criminal Appeal No. 330-B of 2019, decided on 1st September, 2020.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Dishonest improvements made by complainant---Scope---Prosecution case was that the accused party made firing upon the complainant party, due to which two persons died including the son of complainant---Motive was altercation between the deceased and the accused party some days prior to the occurrence---Complainant had stated that when the accused appeared he had seen them from a distance of 10-paces holding pistols in their hands and that when they fired at the deceased he along with eye-witness ran away from the spot and the accused fired at them as well, where they luckily escaped unhurt---In his report, complainant kept mum regarding that particular aspect of the case---Complainant stated that the motive for commission of the offence was an early altercation between the deceased and the accused, when so, why the complainant and the eye-witness were fired at, when they had no nexus with the stated motive---Record showed that five brothers were charged for murder of the deceased but the prosecution remained unsuccessful to convince as to what magnitude of the motive was that put all the real brothers to do away with the deceased---Complainant failed to explain the motive and its intensity which led to the murder---Neither the complainant could produce independent witness in that respect nor the Investigating Officer could collect anything from the surroundings, which could substantiate the claim of the complainant---Complainant went on to say that only three out of the accused had altercated with the deceased, but he could not explain that when and where that altercation took place---Complainant introduced a shop keeper, who was Chachazad (cousin) of deceased, who stated that prior to the incident he was standing at the door step of his shop and at the time of firing he took shelter inside his shop, however, when said witness was further cross-examined he stated that he did not see the accused while firing at the deceased and that after the firing stopped he came out of his shop---Said witness went in glaring contradiction with what the complainant stated, as he stated that the accused when reached near the deceased they drew out their pistols and started firing, however, the complainant stated that from a distance of ten paces, he noticed the accused having pistols in their hands---Question arose as to when witness was inside his shop and he did not see the accused at the time of firing, how could he say and how could he see the accused pulling out their pistols before the firing was made---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. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Unnatural conduct of complainant---Chance witness---Effect---Prosecution case was that the accused party made firing upon the complainant party, due to which two persons died including the son of complainant---In the present case, the presence of the complainant was doubted when he admitted in his cross-examination that it was not his routine to enjoy the company of the deceased, rather his medical checkup brought them together on the day of occurrence---Complainant stated that soon after the incident the accused decamped from the spot, where after he came towards the deceased and with the help of co-villagers shifted them to cots---Investigating Officer did not notice as to whether hands of complainant were besmeared with blood or not---Complainant stated that the deceased were shifted in a vehicle to hospital and he after making the report came back to his village in the company of witness---Question was as to how a real father and real brother could leave the dead-bodies of the deceased unattended and unescorted and that why they did not take the pains to accompany the dead bodies to the hospital for post mortem examination---Conduct of the complainant was not only unnatural but abnormal as well, when he went back to his village in an unholy haste---Presence of the complainant was further doubted that neither he nor the eye-witness was the witnesses of identification before the police at the time of preparation of the injury sheets and inquest reports---None of the witnesses identified the dead-bodies before the doctor at the time of their post mortem examination, which showed that complainant was not present at the time of incident and the report was made when his attendance was procured---Said fact told nothing but that the report was made after preliminary investigation---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----S. 154---First Information Report registered after preliminary investigation---Effect---Reports which were made after preliminary investigation would lose their sanctity and the court must be on guards while convicting the accused that too on capital charge.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Recovery of crime empties and blood-stained earth---Scope---Prosecution case was that the accused party made firing upon the complainant party, due to which two persons died including the son of complainant---Record showed that the Investigating Officer visited the spot and on pointation of the complainant six empties of 30 bore along with blood-stained earth from the places of the deceased were recovered---Empties collected from the spot were sent to the office of the Chemical Examiner to ask an opinion as to whether those were fired from one weapon or more---Laboratory report told that the recovered empties were fired from one weapon---Co-accused was arrested and a .30-bore pistol was recovered from his possession while in police custody another pistol was recovered on his pointation---Said pistol and empties were sent again for an opinion to the Forensic Sciences Laboratory but the report was received in negative---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Contradiction and improvements in the statements of witnesses---Scope---Prosecution case was that the accused party made firing upon the complainant party, due to which two persons died including the son of complainant---Prosecution had examined two eye-witnesses, the complainant and a shopkeeper---Both the witnesses went on constant improvements with the sole purpose to bring their statements in line with the prosecution story---Record told that the complainant did not utter a word in his report that they ran away from the spot and the accused fired at them, however, in his court statement, complainant stated that when the accused reached to the place of incident and started firing on the deceased he along with the eye-witness ran away from the spot and the accused were firing at them from behind---No empty was recovered as it was in the statement of the complainant that the accused made ten fire shots at them---Witness/ shopkeeper was shown in the site plan, prepared at the instance of complainant, in middle of the door of the shop and an impression was given that at the time of firing he was watching the incident, however, said witness stated that he rushed inside the shop to take shelter and that he came out when the accused had left the spot---Said witness when realized the blunder he committed, he went on to say that he had seen the accused before firing while pulling out their pistols---Said witness failed to prove his presence at the spot, particularly when he went in open contradictions with the complainant---Said improvements on part of the witnesses caused a greater damage to the case of the prosecution and the witnesses had lost their worth and credibility---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Withholding of material evidence--- Effect---Prosecution case was that the accused party made firing upon the complainant party, due to which two persons died including the son of complainant---Record showed that brother of one of the deceased was abandoned and his non-production told nothing but that he was not ready to support the false charge of the complainant---Withholding of the best possible evidence favoured none but the accused---Article 129(g) of the Qanun-e-Shahadat, 1984, catered for the situation and the court had no option but to apply the principle of negative inference---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

Riaz Ahmad v. The State 2010 SCMR 846 rel.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Medical evidence did not support the ocular account---Scope---Prosecution case was that the accused party made firing upon the complainant party, due to which two persons died including the son of complainant---Five real brothers had been charged, where one of the deceased received one firearm injury and the other two firearm injuries---Investigating Officer collected six empties of .30 bore from the place of occurrence---Number of injuries did not commensurate with the number of accused and even the Forensic Sciences Laboratory Report did not support the case of the prosecution, as the collected empties after chemical examination were found to have been fired from one 30 bore pistol---Said piece of evidence had lost its integrity and could not be taken against the accused as valid piece of evidence---Seat of injuries on persons of the deceased and the places of the assailants where they were standing at the time of firing found no support from the medical evidence, as one of the deceased had received two firearm injuries from the back side whereas the other from left to right, however, the circumstances suggested that the deceased were facing the accused at the time of incident---One of the deceased received an entry wound right with its exit to left which further belied the stance of the prosecution---Had the deceased been facing the accused or having his back exposed to the accused then either the entry would have been on the front or back, but not from left to right, so it could safely be concluded that the medical evidence did not support the case of prosecution---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

Akhter Saleem and another v. The State and another 2019 MLD 1107 rel.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Motive not proved---Effect---Prosecution case was that the accused party made firing upon the complainant party, due to which two persons died including the son of complainant---Motive advanced was stated to be an altercation between the parties few days prior to the occurrence,but neither the complainant could produce an independent witness in that regard nor the Investigating Officer took the pains to collect any evidence in that respect---Complainant could not explain as to when, where and how the altercation took place and with which of the accused---Complainant was examined on that particular aspect of the case, he stated that three of the accused out of the appellants had altercated with the deceased---Joining hands of five real brothers to do away with the deceased that too for an altercation did not appeal to a prudent mind---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

(i) Criminal trial---

----Motive---Scope---Prosecution was not bound to setup motive in every case but once it was alleged and not proved then ocular account was required to be scrutinized with great caution.

Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 rel.

Farooq Khan Sokarri for Appellants.

Imran Ali Shah for Respondents.

Shahid Hameed Qureshi, Addl. A.G. for the State.

2021 Y L R 924

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmad, J

SAIN MUHAMMAD and 4 others---Appellants

Versus

MUHAMMAD ASLAM and others---Respondents

R.F.A. No. 27-A of 2014, decided on 11th May, 2020.

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

----S.12(2)---Fraud or misrepresentation---Application under S.12(2), C.P.C.---Locus standi---Contention of the appellants/plaintiffs was that the respondent, being a stranger to the (original ) suit, had no locus standi to file an application under S.12(2) of C.P.C.---Held, that the person not party to the suit could file application S.12(2) of Civil Procedure Code, 1908, as in the said provision the word 'person' was used---Words like 'judgment-debtor' or 'his successor-in-interest' or 'party to the suit' had not, purposely and intentionally, been stipulated in S.12(2) of C.P.C.---Aggrieved person, whose rights were jeopardized by the decree obtained by fraud or misrepresentation, had locus standi to file application under S.12(2) of Civil procedure Code, 1908---Appeal was dismissed, in circumstances.

Ch. Jalal Din v. Mst. Asghari Begum and others 1984 SCMR 586; Abdur Rauf and others v. Abdur Rahim Khan PLD 1982 Pesh. 172; Mst. Afroz Jehan v. Mst. Noor Jehan and others 1988 CLC 1318 and Ch. Jalal Din v. Asghari Begum 1984 SCMR 586 ref.

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

----O. I, R. 9 & S. 12(2)---Mis-joinder or non-joinder of the necessary party---Scope and effect---Fraud or misrepresen-tation---Appellants/plaintiffs did not implead the respondent/co-sharer (applicant under S.12(2), C.P.C.) in the suit and obtained the decree in their favour---Held, that joinder or misjoinder of necessary party was to be determined on the basis of allegation contained in the plaint and the relief sought from the Court on the basis of such allegations---Non-impleading of necessary party, in whose absence effective decree could not be passed, was fatal and such decree was liable to be set-aside---Respondent (applicant under S.12(2), C.P.C., was, admittedly, recorded as one of the owners-in-possession in the suit-property, who had claimed interest in respect of land in his possession on the basis of the said revenue record---Presence of the respondent was necessary for the adjudication of the suit instituted by the appellants/plaintiffs---Decree, in the present case, apparently had been obtained by mis-representation and practicing fraud, which (decree) was liable to be set aside---Appeal was dismissed, in circumstances.

Hussain Ali v. Feroza Begum PLD 1971 Dacca 112; Afroz Jehan v. Noor Jehan 1988 CLC 1318; Dinar Trading Company v. Allah Bakhsh PLD 1965 Kar. 36 and National Commercial Bank v. Nazir Ahmad Qureshi 1980 CLC 1794 ref.

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

----S.12(2)---Fraud or misrepresentation---Application under S. 12(2), C.P.C.---Jurisdiction of the Appellate Court---Scope---Appellants/plaintiffs contended that the Appellate Court had no jurisdiction to entertain and decide the application under S. 12(2) of C.P.C. filed by the respondent as he had previously filed such application before the High Court---Held, that initially (in the year 2004) the respondent filed application under S. 12(2) of C.P.C., in the civil revision before the High Court , however, the said application was returned for filing the same before the concerned (Appellate) Court---Thereafter, the respondent filed a fresh application under S. 12(2) of C.P.C., before the concerned Court, instead of presenting the memo of application returned by the High Court which was right.

Shamraz Khan and 8 others v. Muhammad Rafique and others PLD 2006 Pesh. 196 ref.

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

----S. 12(2) & O. VII, R. 10---Fraud or misrepresentation---Application under S.12(2), C.P.C---Plaint, return of---Fresh application under S.12(2) of C.P.C. was filed before the Appellate Court, earlier such application was returned by the High Court---Appellants contended that the earlier filed (memo of) application before the High Court was a public document so respondent was to present exactly the same memo/file before the Appellate Court---Held, that there was no bar either under O.VII, R. 10 of Civil Procedure Code, 1908 or in any other provision of C.P.C., 1908, which precluded the plaintiff/applicant from filing fresh suit/application in case the plaint/application, filed earlier in the Court, was returned on the ground that the Court had no jurisdiction in the matter but subject to limitation---Filing of fresh application, in the present case, for all intent and purposes, was merely a continuation of the old proceedings in the former Court.

Mst. Huwabai and 6 others v. Abdus Shakoor and 8 others PLD 1981 Kar. 277; Abdus Shakoor's case 1982 SCMR 867 and Messrs Pakistan Agro Forestry Corporation Limited v. T. C PAF Pakistan (Pvt.) Limited and others PLD 2003 Kar. 284 ref.

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

----S. 12(2)---Decree obtained by fraud---Application under S.12(2), C.P.C.---Limitation---Held, that impugned decree was passed without hearing of and in the absence of the respondent, whose presence (being co-sharer) was essential before the Court, therefore, the impugned decree was null and void in the eye of law---No question of limitation arose against void order.

Government of Sindh through the Chief Secretary and others v. Khalil Ahmad and others 1994 SCMR 782 and Muhammad Ramzan v. Fazal Waheed and 5 others 2004 YLR 1050 ref.

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

----S.12(2)---Fraud or misrepresentation---Forum for filing application under S.12(2) of C.P.C.---Change in view of the Superior Courts regarding jurisdiction of the Court to adjudicate the application under S.12(2) of C.P.C.---Scope and effect---Contention of the appellants was that the Appellate Court had no jurisdiction to entertain the application under S.12(2) of C.P.C. filed by the respondent as during the pendency of the said application before it (Appellate Court), the earlier view (regarding forum of filing)expressed by Superior Courts was changed---Validity---Earlier view of the Superior Courts was that the application under S.12(2) of C.P.C. could be filed in the Court which had passed the final order---Supreme Court subsequently changed the view and held that final decree/order of the last Court in the series (even if such decree was of affirmation) should be considered and treated to be final judgment/decree/order in terms of S.12(2) of C.P.C and the last Court in the series would be the forum for adjudication of such application---Judgments of the Superior Courts were prospective in nature---Appellate Court, in the present case, had jurisdiction to adjudicate the application under S.12(2), C.P.C. filed by the respondent---Appeal was dismissed, in circumstances.

Abid Kamal's case 2000 SCMR 900; Shamraz Khan and 8 others v. Muhammad Rafique and others PLD 2006 Pesh. 196; Nasrullah Khan and others v. Mukhtar ul Hassan and others PLD 2013 SC 478 and Pir Bakhash represented by his legal heirs and 9 others v. The Chairman Allotment Center and others PLD 1987 SC 145 ref.

(g) Administration of justice---

----Justice could not be sacrificed on the altar of a technicality.

(h) Islamic jurisprudence---

----Justice in Islam---Scope---"Appearance of justice" in Islam---"Appearance of justice" in Islam was essential not only for lawyers and intellectuals, but also for people of the country in general and the litigants/parties in particular.

(i) Islamic jurisprudence---

----Justice in Islam, principles of---Scope---Who succeeded in a litigation unjustly must not retain its benefit.

Sajjad Ahmad Abbasi for Appellants.

Qazi Muhammad Azhar and Malik Masood-ur-Rehman for Respondents.

2021 Y L R 955

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

JUMARAZ---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeal No. 96-M with Murder Reference No.5-M of 2018, decided on 20th October, 2020.

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

----Ss. 302 & 376---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, rape, act of terrorism---Appreciation of evidence---Allegation against the accused was that he raped a 5/6 years old girl in an under-construction room on the rooftop of his house and thereafter committed her murder---Section 6, Anti-Terrorism Act, 1997 (as amended), the offence of rape was no more a "terrorist act" as the same did not appear in subsection (2) of S.6 of the Act, hence, the said offence did not fall within the cognizance of the Anti-Terrorism Court---Charge of murder against the present accused, the mode and manner of the occurrence did not suggest his design for creating fear and terror in the public rather his only aim was to satisfy his lust with the minor girl---Prosecution version was that, after achieving the goal accused killed the minor girl in order to conceal his crime---No doubt, a minor girl was killed in a brutal manner, however, mere gravity or brutal nature of an offence would not provide a valid yardstick for bringing the same within the definition of "terrorism"---Offences in the present case did not qualify the meaning of S.6, which was punishable under S.7 of the Anti-Terrorism Act, 1997---Entire evidence and material available on record revealed, that S.7 of Anti-Terrorism Act, 1997 was not applicable to the case, however, the circumstances established that prosecution had proved the charge against the accused beyond shadow of reasonable doubt---Appeal against conviction was dismissed accordingly.

Ghulam Hussain and others v. The State and others PLD 2020 SC 61 rel.

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

----Ss. 302 & 376---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, rape, act of terrorism---Appreciation of evidence---Delay in recording the confessional statement of accused---Scope---Allegation against the accused was that he raped a 5/6 years old girl in an under-construction room on the rooftop of his house and thereafter committed her murder---Confession was recorded with delay of four days, however, said delay would not damage the reliability of the confession in view of its confidence-inspiring nature and its full corroboration by circumstantial evidence on the record---Confession of an accused and its different aspects in each case was to be looked into in the light of its attending facts and circumstances, therefore, it was not a rule of universal application that in each and every case the delay would essentially damage evidentiary value of confession---Circumstances established that prosecution had proved the charge against the accused beyond shadow of reasonable doubt---Appeal against conviction was dismissed accordingly.

Majeed v. The State 2010 SCMR 55 rel.

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

----Ss. 302 & 376---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, rape, act of terrorism---Appreciation of evidence---Confession, recording of---Allegation against the accused was that he raped a 5/6 years old girl in an under-construction room on the rooftop of his house and thereafter committed her murder---Judicial Magistrate had followed the relevant procedure while recording the statement of the confessing accused and any illegality or even a material irregularity could not be found in the entire proceeding conducted by him---Accused had recorded his statement when he was well within his knowledge regarding significance and consequences of his confession, there was no doubt or suspicion regarding voluntariness of the accused to record his true confession by admitting his guilt with regard to committing rape as well as murder of the minor girl---Circumstances established that prosecution had proved the charge against the accused beyond shadow of reasonable doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 302 & 376---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, rape, act of terrorism---Appreciation of evidence--- Medical evidence and confession of accused---Corroboration---Allegation against the accused was that he raped a 5/6 years old girl in an under-construction room on the rooftop of his house and thereafter committed her murder---Minor deceased was examined by Woman Medical Officer and in her report, rape of the minor girl prior to her murder was abundantly clear as the Woman Medical Officer had observed bruises marks on neck of the deceased and mentioned the cause of death as asphyxia due to manual strangulation and throttling---Said observations of the doctor were in line with confession of the accused wherein he had admitted that the minor became unconscious when he subjected her to rape and thereafter he killed her by pressing her neck---Medical Evidence, thus, abundantly corroborated the confession of the accused---Circumstances established that prosecution had proved the charge against the accused beyond shadow of reasonable doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 302 & 376---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, rape, act of terrorism---Appreciation of evidence---Recovery of incriminating material---Scope---Allegation against the accused was that he raped a 5/6 years old girl in an under-construction room on the rooftop of his house and thereafter committed her murder---Investigating Officer recovered a pair of slippers, placed on an old cot and covered with a tarpaulin, which belonged to deceased as identified by her father/complainant---Cot and tarpaulin were also taken into possession along with slippers---Two empty bags of Cement were lifted from place of occurrence which were taken into possession---Blood was recovered through cotton from a portion of the under-construction room on the rooftop of the house of accused---Accused pointed out the place where the minor girl was subjected to rape---Prosecution had also produced a witness in support of the said recoveries who had verified the same in his examination-in-chief---Forensic Science Laboratory Report regarding the blood and blood-stained articles was positive for human blood---Natural mode and manner of the said recoveries from the spot coupled with photographs taken during pointation by the accused as well as the confidence inspiring statements of witnesses, any probability of false procurement of the said evidence by police was excluded---Circumstances established that prosecution had proved the charge against the accused beyond shadow of reasonable doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 302 & 376---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, rape, act of terrorism---Appreciation of evidence---Circumstantial evidence---Scope---Allegation against the accused was that he raped a 5/6 years old girl in an under-construction room on the rooftop of his house and thereafter committed her murder---Record showed that the son of the present accused appeared before the court and stated that while busy with other people in digging grave for the deceased, he received information regarding involvement of his father in the offence, hence, came from the graveyard and made sit his father in a room of his house whereafter he was arrested by police---Said witness further stated that he was satisfied with regard to commission of the crimes by his father being of notorious character---Said witness had confirmed in cross-examination, that there was no ill-will between them and the accused party rather they were enjoying their lives jointly---Said witness had no motive to falsely depose against his own father, therefore, his statement, being worth credence, could be relied upon in support of the prosecution case---Presence of the accused on the day of occurrence in the same village and even near the place of recovery of the dead body was established---Prosecution story stood to reason and was natural, convincing and free from any inherent improbability---All the circumstances were inter-linked making out an unbroken chain connecting the present accused with rape and murder of the deceased, thus, qualified the criteria of acceptable circumstantial evidence---Circumstances established that prosecution had proved the charge against the accused beyond shadow of reasonable doubt---Appeal against conviction was dismissed accordingly.

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

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

----Ss. 302 & 376---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, rape, act of terrorism---Appreciation of evidence---Non-availability of DNA report---Scope---Allegation against the accused was that he raped a 5/6 years old girl in an under-construction room on the rooftop of his house and thereafter committed her murder---No doubt, the DNA report was not available on record, however, blood of accused and vaginal swab of the victim were sent for the said purpose---Test of blood of accused for DNA for determination of the fact that the semen found on the body or garments of the victim was the accused was not the requirement of law---Circumstances established that prosecution had proved the charge against the accused beyond shadow of reasonable doubt---Appeal against conviction was dismissed accordingly.

Farooq Ahmad v. The State PLD 2020 SC 313 rel.

Sajjad Anwar for Appellant/ convict.

Sohail Sultan, Assistant A.G. for the State.

Hafiz Ashfaq Ahmad for Respondent/complainant.

2021 Y L R 995

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali and Wiqar Ahmad, JJ

IBRAHEEM KHAN---Appellant

Versus

The STATE through Additional Advocate General, Peshawar and another---Respondents

Criminal Appeal No. 166-M of 2017, decided on 4th November, 2019.\

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

----Ss. 302(b), 324 & 337-A(i)---Qatl-i-amd, attempt to commit qatla-i-amd, shajjah-e-madihah---Appreciation of evidence---Accused was charged for causing injuries on the person of complainant and also committed murder of the companion of the complainant by firing---Perusal of record revealed that complainant was the sole eye-witness available with the prosecution---Statement of the DFC was recorded on 04.05.2017 and on that very day the statement of the complainant which had earlier been recorded in the proceedings under S.512, Cr.P.C. was transported to the record of the present case---Trial Court had not made any further efforts for procuring the attendance of the said complainant---Statement of the DFC that the said complainant had gone to foreign country for earning his livelihood was considered as sufficient evidence of the fact itself---No further evidence of the fact that he had in-fact left the country could be called by the Trial Court so as to satisfy itself that the accused had in-fact left the country---Mere statement of DFC was made the basis for transposing the statement of the prosecution witness recorded under S.512, Cr.P.C., which was not a safer course and could not be allowed, in circumstances---Being the sole eye-witness of the occurrence as well as complainant in the case he was not only important for the prosecution but for the defence as well (for the purpose of his cross-examination)---Cross-examination upon said witness would have also been beneficial for the Trial Court as well as High Court for achieving its due satisfaction for the purpose of safe administration of justice---Circumstances established that the Trial Court had not taken the required care and caution in the case---Appeal was partially allowed by setting aside conviction and sentences recorded by the Trial Court and case was remanded back to the Trial Court with the direction to make all-out efforts to procure the attendance of complainant for recording his testimony in the court before resorting to the measure of transposition of the statement recorded under S.512, Cr.P.C.

Mrs. Shagufta Shaheen v. The State 2019 SCMR 1106 ref.

Fazal Muhammad and another v. The State 1970 PCr.LJ 858; Ali Haider v. The State PLD 1958 SC (Pak) 392 and Allah Ditta v. The State PLD 1958 SC (Pak) 290 rel.

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

----Art.133---Cross-examination---Scope---Right to cross-examination was the most cherished part of the right of an accused during the trial---Said right might or might not prove beneficial to the accused in a particular case but same had always been beneficial to the courts in deciphering the hidden facts, in discovering the real issues, in uncovering the buried realities and thus reaching at the right and just conclusions. [p.1001] D

Muhammad Raziq Khan for Appellant.

Rahim Shah, Asstt. Advocate General for Respondents.

2021 Y L R 1055

[Peshawar]

Before Muhammad Naeem Anwar, J

Haji FAZAL GHANI---Petitioner

Versus

FAZLE AHAD and 4 others---Respondents

Civil Revision No. 183-P of 2019, decided on 2nd March, 2020.

Civil Procedure Code (V of 1908)---

----Ss. 96 & 115---Limitation Act (IX of 1908), Art.120---Appeal from original decree---Non-impleadment of necessary party in appeal---Effect---Sister of petitioner filed suit for declaration that she being daughter of deceased was owner of the suit property thus, tamleeq mutation was based on fraud and mala fide, therefore, inoperative upon her rights---Sister of petitioner passed away and her legal heirs were impleaded, however, after rejection of plaint, the appeal was field only by the petitioner, whereas rest of the legal heirs were neither impleaded as appellants nor respondents---Appeal was dismissed---Validity---Petitioner had earlier filed a declaratory suit seeking similar relief but the plaint was rejected and he had not preferred an appeal---Validity---Appeal filed by the petitioner was not competent and similarly, present petition was also not maintainable for the reason that the legal heirs of petitioner's sister were not arrayed as party despite the fact that they were party before the Trial Court---Suit was barred by time in accordance with Art. 120 of the Limitation Act, 1908---Revision petition was filed on 109th day which was to be filed within 90 days as provided in second proviso to S.115, C.P.C.---Petitioner had not filed any application under S.5 of Limitation Act, 1908 for condonation of delay---Revision petition was dismissed, in circumstances.

Mst. Maqbool Begum and others v. Gullan and others PLD 1982 SC 46; Subeh Sadiq v. Mst. Rajan through legal heirs and others PLD 2006 Lah. 585; Ali Muhammad Jan through Legal Heirs v. Mst. Surriya Begum and 6 others 2011 YLR 1559 and Fateh Muhammad and others v. Malik Qadir Bakhsh and others 1975 SCMR 157 rel.

Yaqoob Khan for Petitioner.

Qazi Muhammad Aqil and Asad Jan for Respondents.

2021 Y L R 1090

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmad, J

MUHAMMAD HANIF---Petitioner

Versus

ZARDAD KHAN and others---Respondents

Civil Revision No. 244-A of 2007, decided on 25th January, 2021.

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

----Ss. 42 & 54---Suit for declaration, permanent injunction and possession---Genuineness of the document---Presumption of truth attached with the registered document---Scope---Gift to the stranger---Scope---Allegation of fraud, proof of---Petitioner/plaintiff instituted suit on the basis of registered sale-deed in his favour contending that the gift-mutation in favour of the donee-defendants was fraudulent in which requirement of gift of immoveable property were lacking and that the donor-defendant was not in blood relationship with the donee---Held, that presumption of truth was attached with the registered sale-deed so the defendants/respondents were under obligation not only to shatter genuineness of the alleged registered sale-deed but also to prove genuineness of the gift-mutation attested in their favour---Record revealed that the donor-respondent himself had contested the suit; he denied the execution of registered sale-deed and had admitted the genuineness of the gift-mutation in favour of donor-respondents---Donor-respondent asserted that throughout his life, he had lived with the donee-respondents who (donee) had looked after him (donor)---Petitioner/plaintiff also placed reliance on the affidavit allegedly executed by the donor-respondent showing his admission regarding the registered sale-deed---Said affidavit was, however, not proved as the petitioner failed to produce the very executants and even he (executant-donor) was not cited as a witness in the list of his witnesses, though he (donor) was alive at the time of recording of evidence---Petitioner failed to produce two witnesses, in presence of whom he entered into oral sale-agreement with the donor-respondent---No sale-consideration was, admittedly, paid before the execution of registered deed---There was difference in all three relevant dates regarding alleged registered sale-deed (i.e. purchase of stamp paper, scribing of sale-deed and execution/attestation of sale-deed), which the petitioner , in his evidence, attributed to on and off visits of the donor-respondent from remote city (of his (donor's) residence---It was not appealable to a prudent mind that donor-respondent would have been coming from other city on different (three) dates for undergoing process of execution of the registered sale-deed---Evidence adduced by the petitioner carried discrepancies in the statements regarding time of purchasing stamp-papers, scribing of registered sale-deed, presence of the witnesses and appearance before the Registrar---Gift-mutation was prior in time and the second transaction of sale-deed, if any, allegedly made by the donor-respondent was illegal and void as he (donor) was no more owner of the suit-property after alienating in favour of donee-respondents---Record revealed that gift-mutation was sanctioned in the presence of the concerned Tehsildar in a public meeting and on inquiry by the Tehsildar, Donor/respondent accepted that he was making gift with his own free will---Donor/respondent had also admitted in his written-statement that the possession of the suit-land had been delivered to the donor/respondents---Basic three ingredients of the gift, in the present case, were fulfilled as when the donee had been possessing the land and had got his name mutated in the revenue record in respect of land, the same implied his acceptance---Donor-respondent had not objected to the gift-mutation during his life-time rather he had admitted its execution---Though, gift mutation executed by a sick person, dependant at the mercy of his attendants under compelling circumstances, was illegal and was not binding but, in the present case, nothing existed on record to indicate that donor-respondent was sick and infirm at the time of execution of the gift-mutation and the same had been obtained by the donor-respondent through fraud, coercion, undue pressure and undue influence was exercised on him (donor) to constitute the said gift---Mere assertion of the petitioner regarding fraud was of no consequence as it was very easy to assert fraud but it was difficult to prove the same---Muslim donor enjoyed vast unfettered power to alienate his property by way of gift during his lifetime, subject to his proper state of health so that gift was to be made of his own without any coercion or inducement---Merely non-existent of blood relation would not be sufficient to declare the gift invalid---Concurrent findings of questions of fact were based upon true appreciation of material on record---High Court could not supersede even if another view would have been deducible from the evidence---No ground of interference existed in the conclusion drawn from comprehensive consideration of the case by both the Courts below---No illegality or infirmity was found in the impugned judgments and decrees passed by both the Courts below dismissing the suit of the petitioner declaring the gift-mutation in favour of respondents as valid one---Revision petition was dismissed, in circumstances.

Mst. Jabeda Khatoon v. Moheed Ali AIR 1973 Gauhati 105; Mst. Nagina Begum v. Mst. Tahzim Akhtar and others 2009 SCMR 632; Ghulam Ghaus v. Muhammad Yasin and another 2009 SCMR 70 and Tahir Pervez v. Muhammad Sadiq and others 2005 CLC 346 ref.

(b) Islamic law---

----Valid gift--- Pre-requisites---Declaration, offer by the owner, acceptance of gift by the donee and the delivery of possession were the pre-requisites of a valid gift---No illegality or infirmity was found in the impugned judgments and decrees passed by both the Courts below dismissing the suit of the petitioner declaring the gift-mutation in favour of respondents as valid one---Revision petition was dismissed, in circumstances.

Ikram-ul-Qayyum for Petitioner.

Haji Ghulam Basit for Respondents.

2021 Y L R 1120

[Peshawar (Bannu Bench)]

Before Ms. Musarat Hilali and Sahibzada Asadullah, JJ

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

Versus

IMRAN---Respondent

Criminal Appeal No. 397-B of 2016, decided on 5th May, 2020.

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

----S. 9(c)---Possession of 18200 grams of charas---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Prosecution case was that 18200 grams charas was recovered from a gas cylinder fixed in the dickey of a motorcar, driven by accused---Complainant stated that after receiving information he along with six others reached to the spot a little early and found the car coming with enormous speed---Said vehicle was signalled to stop but it went ahead with accelerated speed and was chased through his Alto Suzuki car---Statement of the complainant was a little disturbing as to how an Alto motorcar could accommodate seven police officials duly armed with weapons including complainant and that when the motorcar was signalled to stop and it did not, how in the shortest span of time all the seven boarded the motorcar and chased the vehicle containing narcotic---If the testimony of the complainant was accepted to be correct then it could be presumed that either the accused was not present in the motorcar or he was not in the knowledge regarding the narcotic---Complainant further stated that on their arrival near the motorcar he recovered the narcotics from the gas cylinder fitted in the dickey---Said fact added a little doubt as to how without the pointation of the accused the complainant went straightaway to the dickey and recovered the narcotic without searching rest of the motorcar---Circumstances established that the prosecution failed to prove its case against the accused---Appeal against acquittal was dismissed accordingly.

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

----S. 9(c)---Possession of 18200 grams of charas---Appreciation of evidence---Appeal against acquittal---Contradictions in the statements of witnesses---Scope---Prosecution case was that 18200 grams of charas was recovered from a gas cylinder fixed in the dickey of a motorcar driven by accused---In the present case, the complainant stated that the gas cylinder was removed by all seven police officials and was placed on the ground where after with the help of instruments i.e. screw driver it was opened and the recoveries were effected---Other police witness stated that when he reached near the motorcar he found the gas cylinder intact in the dickey and without dislodging it the recovery was effected---Complainant stated that the weighment was made with the help of a digital scale lying in his motorcar, whereas the Investigating Officer stated that he himself made the weighment with the help of a manual scale by using different bots---Prosecution case ran with abnormalities that despite the fact the police officials were armed with sophisticated weapons but they did not resort even to ariel firing to compel the decamping accused to stop and he apprehended---Nothing was on record as to why an open opportunity was extended to accused to leave the scene---Witnesses ran with glaring contradictions and improvements and they never remained consistent on material points of the case---Recovery so effected could not get support from the complainant and the Investigating Officer, as they stated that the recovered narcotic was consisting of slabs and that it was charas pukhta, however, when the case property was produced before the Trial Court, on request of accused, it was opened, where on one hand some of the seals were found broken, whereas on the other it was in pieces---Said contradiction further disputed the veracity of the witnesses on one hand and the identity of the recovered narcotic on the other hand---Prosecution failed to prove its case against the accused, in circumstances---Appeal against acquittal was dismissed accordingly.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)---Seizure of narcotic---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Chemical analysis---Delay in sending samples of contraband for analysis---Effect---Record showed that the test samples were received by the laboratory after a considerable delay of 10-days---Investigating Officer was questioned time and again regarding the remaining case property and its safe custody, who initially stated that he did not know that where the same was lying but later on stated that it was lying in the custody of the Moharrir of the concerned Police Station---Admittedly neither the statement of the Moharrir was recorded nor an abstract from Register No.19 was collected and placed on the record---Circumstances suggested that dispatch of the test samples from the Police Station to the Forensic Sciences Laboratory had not been established in the way and in the manner as was commanded by the law---Forensic Science Laboratory Report so collected, therefore, could not be accepted and relied upon---Prosecution failed to prove its case against the accused, in circumstances---Appeal against acquittal was dismissed accordingly.

Kamran Shah and others v. The State and others 2019 SCMR 1217 rel.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence--- Appeal against acquittal---Benefit of doubt---Non-production of daily diary---Effect---In the present case, when the Investigating Officer was questioned regarding the arrival and departure from the police station to spot, he blatantly answered that he did not place on record the daily diary in that respect---Said lack of seriousness of Investigating Officer told nothing but to stamp him as an interested witness and his testimony could not wholeheartedly be relied upon---Prosecution failed to prove its case against the accused, in circumstances---Appeal against acquittal was dismissed accordingly.

Pir Noroz Ali Shah v. The State 2019 PCr.LJ 457 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---If two views were possible on the evidence adduced in a case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.

Shahid Hameed Qureshi, Addl. A.G. for the State.

Nemo for Respondent.

2021 Y L R 1135

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmad, J

Mst. SAFEENA SHAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous (BA) No. 884-A of 2020, decided on 12th October, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 109---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd and abetment---Unlicensed possession of arms---Bail, grant of---Un-witnessed incident---Scope---Accused along with others were alleged to have murdered the son of complainant---Crime was admittedly un-witnessed one---Complainant had charged the accused on the basis of disclosure made to him by the employees of Rescue 1122---Statements of said employees reflected that when they had attended the deceased, then injured, he was in senses and he disclosed them the name of accused for causing him bullet injury---Statements of persons who had arrived at the spot reflected that the deceased, then injured, was not in a position to talk---Case of petitioner squarely fell within the ambit of subsection (2) of S.497, Cr.P.C.---Petition for grant of bail was allowed, in circumstances.

Iftikhar Ahmad Tanoli for Petitioner.

Ms. Fizza Ahmad Nizami State Counsel.

Maqbool Hussain for the Complainant.

2021 Y L R 1160

[Peshawar]

Before Ikramullah Khan, J

SECRETARY TO GOVERNMENT OF KHYBER PAKHTUNKHWA ---Petitioner

Versus

TAJDAR KHAN and others---Respondents

Criminal Miscellaneous / Quashment Petition No. 74-P of 2019, decided on 20th August, 2020.

Provincial Motor Vehicles Ordinance (XIX of 1965)---

----Ss. 23(4), 25 & 43---Khyber Pakhtunkhwa (Road Checking, Seizing and Disposal of Motor Vehicles) Rules, 2015, Rr. 3, 4, 8, 9(3) & 10---Seizure of vehicle---Tampered chassis number---Superdari of vehicle---Vehicle in question had been seized by squad of Intelligence Bureau of Excise Taxation and Narcotics Control Department on the basis of suspicion of having bogus registration documents, and tampered chassis---Registration documents, after verification from the concerned Registration Authority, were also found to be bogus---Respondent claiming to be owner and last possessor applied the Court of Session for interim custody of the vehicle by filing an application under S.516-A, Cr.P.C., which was allowed through the impugned judgment---Validity---Any person aggrieved from the order passed by the confiscating authority under the provisions of sub-rule (3) of R. 9 of Khyber Pakhtunkhwa (Road Checking, Seizing and Disposal of Motor Vehicles) Rules, 2015, may prefer an appeal to the concerned Deputy Director (Region) within fifteen days after passing of such order under R.10(1) of the Rules---Under sub-rule (2) of R.10 another appeal can be filed, against the order of Deputy Director, before the Director General within thirty days---In view of sub-rule (5) of R.10 the Secretary to Government may, on its own accord or on an appeal filed by any aggrieved person within sixty days against the order of the Director General pass such orders as it deemed fit in accordance with law---Said rules provided a concise and complete procedure thereafter the seizure of vehicle under those Rules and before confiscation of the same, which are still holding the field, and is prevailing law on the subject---Provisions contained in S.516-A, Cr.P.C., empoweres a criminal court to make order for disposal of property pending trial in certain cases---Record showed that the authorities had taken into custody and had seized the vehicle under consideration, on the basis of having not only the forged registration number but also tampered chassis frame---No criminal case had been registered by the authorities against the respondent and no criminal inquiry was under process or any trial was pending before any criminal court, while the vehicle in question was neither a case property nor used in commission of an offence---Vehicle so seized under consideration was the one, which was also the case property---All such disputed and factual controversy was to be dealt with by the competent authority, designated as such under the Motor Vehicles Rules, 2015 and, any other claimant/owner, if so advised, might take recourse to the concerned authorities---Petition was allowed by setting aside impugned judgment with direction that vehicle, if already handed over to respondent, would be re-taken into custody by the petitioners.

Syed Hamad Ali Shah for Petitioner.

Ijaz Muhammad for Respondents.

Rab Nawaz Khan, Addl: A.G. for the State.

Date of hearing: 20th August, 2020.

IKRAMULLAH KHAN, J.--- Through the instant quashment petition, filed under section 561-A Cr.P.C. petitioners have challenged the impugned judgment dated 18.09.2019, rendered by learned Sessions Judge, Nowshera, whereby the learned Judge has handed over the vehicle bearing registration No.LEC-102 on interim custody to the respondent/claimant owner.

1. In essence, a motor vehicle bearing Registration No.LEC-102, had seized by squad of Intelligence Bureau of Excise Taxation and Narcotics Control Department, KP, Peshawar (Petitioners) on the basis of suspicion, of having bogus Registration documents and tampered chassis. The motor vehicle concerned was inspected and examined through Forensic Science Laboratory for the purpose to determine any tampering within the chassis of the vehicle, which was found to be tampered. The Registration documents after verification from the concerned Registration Authority, Lahore, were also declared to be bogus. That the respondent namely Tajdar Khan, claiming to be owner and last possessor, applied thereto the learned Court of Sessions, for interim custody of the motor vehicle concerned, by filing an application under section 516-A, Cr.P.C., which was allowed through the impugned judgment, hence the instant petition, filed by the petitioners with the following relief:

"It is, therefore, most humbly prayed that in view of aforesaid facts the impugned order may kindly be quashed/set aside and the vehicle in question may be left in the custody of Provincial Ware House, for the further process of confiscation in favour of State under the relevant law."

1. Learned counsel for petitioners contended that the impugned judgment is against law; that the learned Court has no jurisdiction to exercise any power to make direction, in view of section 516-A, Cr.P.C. for giving interim custody of the motor vehicle concerned, as the same was not case property described thereunder section 516-A, Cr.P.C.; that under the Khyber Pakhtunkhwa (Road Checking, Seizure and Disposal of Motor Vehicles), Rules, 2015, a definite hierarchy is provided, for disposal of vehicles, seized under the Rules, 2015 and no criminal case has been registered by the petitioners against the respondent, therefore, the learned Court of Sessions has got no jurisdiction to release the vehicle under consideration on bail/ interim custody.

2. On the other hand, learned counsel for respondent argued that the vehicle under consideration is case property of case FIR No.44, which had released by competent Court of law on bail/interim custody; that on one hand, the petitioners could not seize the vehicle under consideration under the Motor Vehicle Rules, 2015, while on other hand, no criminal proceedings under different head of law, could be initiated against the motor vehicle under consideration, therefore, the impugned judgment is based on proper appreciation of law on the subject, and is just and fair, could not be set aside by this Court, in exercise of its inherent jurisdiction saved thereunder section 561-A, Cr.P.C.

3. I have heard learned counsel for the parties, and also learned Additional Advocate General on behalf of the State in light of facts on record and law on the subject.

4. In order to resolve the legal proposition, agitated during course of argument by learned counsel for the parties, it would be expedient to give reference to relevant provisions of law, under which petitioners could seize and confiscate motor vehicles and power/jurisdiction of Courts, in matter of releasing/handing over of motor vehicles, involved in any criminal case, seized by law enforcing agencies under provisions of respective law on the subject.

5. The Government of Khyber Pakhtunkhwa, in exercise of its legal rights, conferred upon her, under sections 43, 23 and 25(4) of the Provincial Motor Vehicles Ordinance, 1965, has made the Khyber Pakhtunkhwa (Road Checking, Seizure and Disposal of Motor Vehicles) Rules, 2015 where under Rules 3, Seizing Officer may seize the following vehicles:

"3. Seizure of illegal vehicles.---The seizing officer may seize the following vehicles:

(a) having suspicious registration certificate, or the registration certificate of which has been suspended or cancelled under the first proviso to subsection (4) of section 25 of the Ordinance; or

(b) suspicious chassis number; or

(c) tax defaulted vehicle; or

(d) snatched or lifted vehicle as per police record; or

(e) non-production of valid registration documents or registration mark; or

(f) vehicles used in suspicious subversive activities; or

(g) vehicles with suspicious superdari documents; or

(h) any suspicious vehicle found parked in the private premises including bargain centers and general bus stands etc.; or

(i) vehicle wherein secret cavities are designed in such a way to facilitate the transportation of narcotic substances and other contraband items."

1. The provisions contained in Rule 3 ibid, prescribed the procedure, in matter of seizure etc, and Sub-Rule (2) of the Rule 4 of Rules, 2015, make it mandatory that the officer incharge of the Ware House shall enter Form "A" and other particulars of the vehicle in a separate register to be maintained by him in Form "B". While in term of sub-Rule (4) of Rule 4 ibid, the seizing officer shall record full detail of the person from whom the vehicle is taken into possession and to investigate such person if requires, in the manner as may be specified in Form "C" thereof. Rules 6 and 7 of Rules, 2015 provide the mechanism for chemical examination of the motor vehicle and verification of documents/registration respectively. The provisions contained in Rule 8 of the Rules, 2015 prescribe the procedure, either to confiscate the motor vehicle so seized or to release the same, which reads as:

"8. Notice to the owner or last possessor.---(1) The confiscating authority shall issue notice to the owner or last possessor, as the case may be, of the seized vehicle through registered post with acknowledgement due, asking to appear before him, within fourteen (14) days, after the issue of such notice and to establish that he is bona fide owner or possessor, as the case may be, of the seized vehicle.

(2) In case the owner or last possessor appears and establishes his claim of ownership over the seized vehicle, the District Officer shall decide such claim within fourteen (14) days after hearing the owner or last possessor or any other claimant, as the case may be, if there is rival claimant. But if for some unavoidable reason the proceedings cannot be finalized within the stipulated period of time, the case shall be referred to the Director General, for extension of period, who may extend the period, not exceeding thirty (30) days.

(3) If the owner or possessor establishes his rightful ownership, the confiscating authority shall, under his seal issue release order, and direct the officer incharge of the warehouse to deliver the vehicle to him, along with accessories mentioned in Form "A" under intimation to the seizing officer."

In term of sub-rule (3) of Rule 9 ibid while in case of chassis frame, sheet, plate etc is tampered, it may be confiscated which reads as:

"9 (3) If the chassis frame, sheet, plate or number, as the case may be, of the seized vehicle is tampered or cut and welded or its original chassis number is found completely removed as per Forensic and Science Laboratory report, or if the registration book or other documents, as the case may be, is found fake and forged, the confiscating authority shall record its order for confiscation of the seized vehicle in favour of Government, subject to the provisions of rule 10."

1. Any person aggrieved from the order passed by Confiscating Authority under the provisions of sub-rule (3) of Rule 9 of Rules, 2015 may prefer an appeal to the concerned Deputy Director (Regional) within 15 days after passing of such order under Rule 10 (1) ibid. While, under Sub-Rule (2) of Rule 10 ibid another appeal is allowed, against the order of Deputy Director, before the Deputy Director General within 30 days. In view of Sub-Rule (5) of Rule 10 ibid the Secretary to Government may, on its own accord or on an appeal filed by any aggrieved person within 60 days, against the order of the Director General may pass such orders as it deem fit in accordance with law.

2. The above mentioned Rules provide a concise and complete procedure, thereafter seizure of a vehicle under these rules, and before confiscation of the same, which are still holding the field and, is prevailing law on the subject, while on other hand, the provisions contained in section 516-A, Cr.P.C., empower a criminal Court to make order for disposal of properly pending trial in certain cases which reads as:

"Sec. 516-A. Order for Custody and disposal of Property Pending trial in certain cases.---When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence, is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

Provided that, if the property consists of explosive substances, the Court shall not order it to be sold or handed over to any person other than a Government Department or office dealing with, or to an authorized dealer in, such substances.

Provided further that if the property is a dangerous drug, intoxicant, intoxicating liquor or any other narcotic substance seized or taken into custody under the Dangerous Drugs Act, 1930 (II of 1930), the Customs Act, 1969 (IV of 1969), the Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979), or any other law for the time being in force, the Court may, either on an application or of its own motion and under its supervision and control obtain and prepare such number of samples of the property as it may deem fit for safe custody and production before it or any other Court and cause destruction of the remaining portion of the property under a certificate issued by it in that behalf:

Provided also that such samples shall be deemed to be whole of the property in an inquiry or proceeding in relation to such offence before any authority or Court."

2021 Y L R 1199

[Peshawar ((Mingora Bench)]

Before Syed Arshad Ali and Wiqar Ahmed, JJ

ASAD SHAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Appeal No. 205-M of 2017, decided on 1st October, 2019.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Statement of child witness---Scope---Accused was charged for committing murder of the sister of the complainant---Most important evidence in the case was the statement of the child witness/ daughter of deceased---At the time of recording of her statement, she was 9/10 years old---Trial Court had put certain questions to the child to satisfy itself regarding her understanding vis-à-vis her capability for deposing as witness---One day before the date of occurrence, minor witness met the accused in the street, who handed her a piece of paper inscribed with his mobile phone number and told her that it should be handed over to her mother---Minor witness accordingly brought the said piece of paper and handed over to her mother i.e. the deceased then alive, who replied that she did not want to talk to any stranger---Accused was stated to have entered their house one day before the occurrence at Isha time and was told by her mother that her husband was not at home and he should therefore immediately leave the house and should not throw stones at the door of their house---Minor witness had charged the accused for the murder of her mother---Said child who was presented as star witness of the prosecution against the accused had not seen the occurrence---Motive narrated by that witness was also of such a nature that did not seem to be that much potent to have compelled the accused to kill the deceased---Even otherwise the statement of a child witness was to be accepted with great care and caution---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Ulfat Hussain v. The State 2010 SCMR 247; PLD 1995 SC 1; 1985 PCr.LJ 2500; 2013 PCr.LJ 708 and 2017 PCr.LJ 509 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of weapon and crime empties---Scope---Accused was charged for committing murder of the sister of the complainant---Empties recovered from the spot had not been sent to the Forensic Science Laboratory earlier---Same were lying in the police station and were sent to the Forensic Science Laboratory along with the pistol with delay, and a matching report had been received---Keeping said articles in the police station and then sending the same to Forensic Science Laboratory along with pistol diluted the force of the said recovery and the matching report of the Forensic Science Laboratory---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Israr Ali v. The State 2007 SCMR 525 and Jehangir v. Nazar Farid and another 2002 SCMR 1986 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of piece of paper (a letter written by accused to the deceased and her reply)---Scope---Accused was charged for committing murder of the sister of the complainant---Recovered piece of paper had been sent to Forensic Science Laboratory for comparison with handwriting of the accused---Handwriting expert found the two as matching which fact was incorporated in the report of the Forensic Science Laboratory---Handwriting expert was not examined---Examination of handwriting expert was necessary, as report of handwriting expert had not been included in those technical experts whose statement or report had been held admissible per se under S.510, Cr.P.C.---Handwriting expert having not been examined in the case, therefore the prosecution could not rely on his opinion given in the report of the Forensic Science Laboratory---Appeal against conviction was allowed, in circumstances.

Kaka Kishanchand v. The State PLD 2003 Kar. 618 and Qasim Ali Malik v. The State 2012 PCr.LJ 124 rel.

(d) Criminal trial---

----Circumstantial evidence--- Scope---Circumstantial evidence was a weaker type of evidence without netting the chain from start till the end---Accused could not be handed down a sentence of capital punishment on the basis of such evidences.

Fayaz Ahmad v. The State 2017 SCMR 2026 rel.

Shams-ul-Hadi for Appellant.

Rahim Shah, Assistant Advocate General.

Sahibzada for the Complainant.

2021 Y L R 1222

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmad, J

DIRECTOR-GENERAL (HEADQUARTERS) CIVIL WORKS ORGANIZATION through Authorized Officer---Appellant

Versus

Haji BANARAS and 2 others---Respondents

Execution First Appeal No. 14-A of 2019, decided on 7th October, 2019.

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

----S. 48---Limitation Act ( IX of 1908), Art. 181---Law Reforms Ordinance (XII of 1972), Preamble---First execution application---Limitation---Decree-holders filed execution applications after the final order of decree of the Appellate Court---Objection raised, at the Executing Court, by the Appellant (judgment-debtor) was that the execution petitions were not filed within prescribed time from the date of original decree---Held, that after promulgation of Law Reforms Ordinance, 1972, first application for execution of a decree was to be governed by residuary Art. 181 of the Limitation Act, 1908, and the application, made thereafter, would be governed by six years period of limitation as provided by section 48 of the Civil Procedure Code, 1908---Record revealed the Appellant had previously assailed the judgment of the High Court through separate civil petitions, which were contested by the decree-holders and the same were dismissed by the Supreme Court not on merits but being barred by time; whereafter, execution petitions were filed---Right to file the execution petitions accrued to the respondents (decree-holders) after dismissal of appeals by the Supreme Court---Though Supreme Court did not dismiss said appeals on merits, but on limitation, because the same were contested by the respondents(decree-holders), therefore, the period of limitation, in the case, would commence from the date of judgment/order of the Supreme Court---Execution applications filed by the respondents (decree-holders) were not barred by time---Executing Court rightly dismissed the objection petitions of the appellants--- Appeals were dismissed, in circumstances.

Mehboob Khan v. Hassan Khan Durrani PLD 1990 SC 778; National Bank of Pakistan v. Aziz-ud-Din 1996 SCMR 759; Maqbool Ahmad v. Shahzad Tabasum 1995 CLC 358; Moulvi Abdul Qayyum v. Syed Asghar Shah 1992 SCMR 241 and Sardar Begum's case 2001 SCMR 1636 ref.

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

----Preamble---Decree for payment of compensation---Scope---Held, that each and every case was to be decided on its peculiar facts and circumstances---Decree for payment of compensation under Land Acquisition Act, 1894, was of a peculiar nature---Compensation awarded by the Referee Court of the land of respondents (decree-holders), could not be paid to them despite lapse of fifteen long years due to protracted litigation---Decree-holders could not be unfairly deprived from the fruit/benefit of the decree--- Executing Court rightly dismissed the objection petitions of the appellants---Appeals of the Acquiring Agency were dismissed, in circumstances.

Muhammad Saleem's case 1994 SCMR 2213 and Syed Phul Shah v. Muhammad Hussain PLD 1991 SC 1051 ref.

Usman Jillani and Masood Ahmad Khattak for Appellants.

Qazi Zahir for Respondent.

2021 Y L R 1241

[Peshawar]

Before Waqar Ahmad Seth, C.J.

RIAZ ULLAH---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Petition No. 2606-P of 2020, decided on 11th September, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), Ss. 9(d), 27 & 31---Possession of narcotics---Power to issue warrants---Mode of making searches and arrest--- Bail, grant of---Search of dwelling house---Rule of consistency---Further inquiry---Scope---Huge quantity of contraband was recovered from the personal possession of accused as well as from room of the house---No lady constable was associated with the local police---Nothing was available on record to show that the accused was a previous convict---Case of accused was also hit by the rule of consistency as the principal accused had already been released on bail---Search warrant was not obtained because the Court timings were over, however, the information was brought into the notice of the high-ups, but nothing in black and white was available on the file to show that the same was either brought into the notice of their seniors or they had permitted them to conduct raid over the dwelling house---Violation of S.28(2) and directions contained in Ss. 27 & 31 of Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019, had therefore been made---Case of accused was arguable for the purpose of bail---Petition for grant of bail was allowed, in circumstances.

Noor Alam Khan and Shabbina Noor for Petitioner.

Atif Ali, A.A.G. for the State.

2021 Y L R 1267

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmad and Ahmad Ali, JJ

Mst. BASRI IRSHAD---Petitioner

Versus

TAUQIR HAYAT and another---Respondents

Writ Petition No.1316-A of 2019, decided on 18th March, 2020.

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

----S. 491---Habeas corpus---Custody of minor---Right of hizanat---Scope---Petitioner assailed order passed by Sessions Judge whereby her application under S.491, Cr.P.C. for custody of minor was dismissed on the ground that the minor seemed comfortable in the company of his father---Validity---Lap of mother was a heavenly place and she had an inherent right to keep her children close to her bosom---Mother was a symbol of sacrifice for her children and there was no substitute of her love and affection, who showered her love and affection upon children from cradle to grave---Petitioner even otherwise had the right of hizanat under the Islamic Law as the age of minor was about 3½ years---Petitioner was entitled to the interim custody and she could not be deprived from the same until and unless decided otherwise by the Guardian Judge---Constitutional petition was allowed and custody of minor was handed over to the petitioner/mother.

Naziha Ghazali v. The State and another 2001 SCMR 1782 distinguished.

Mirjam Abrras Lehdeaho v. S.H.O. Police Station Chung, Lahore and others 2018 SCMR 427; Abdur Rehman Khakwani v. Abdul Majid Khakwani and 2 others 1997 SCMR 1480; Mst. Nadia Parveen v. Mst. Almas Noreen and others PLD 2012 SC 758 and Mst. Khalida Parveen v. Muhammad Sultan Mehmood and another PLD 2004 SC 1 rel.

Ahmed Sami and 2 others v. Saadia Ahmed and another 1996 SCMR 268; Shaukat Masih v. Mst. Farhat Parkash and others 2015 SCMR 731; Muhammad Khalil-ur-Rehman v. Mst. Shabana Rahman and another PLD 1995 SC 633 and Mst. Nadia Parveen v. Mst. Almas Noreen and others PLD 2012 SC 758 ref.

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

----S. 491---Guardians and Wards Act (VIII of 1890), Ss. 25 & 12---Habeas corpus---Custody of minors---Pendency of application before Guardian Judge---Scope---Petition under section 491, CrPC is maintainable and can be filed during pendency of application before Guardian Judge for custody of minor.

Abdur Rehman Khakwani v. Abdul Majid Khakwani and 2 others 1997 SCMR 1480 rel.

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

----S. 491---Habeas corpus---Custody of minors---Welfare of minor---Scope---High court is not supposed to decide the matter of custody of minor because it is for the Guardian Judge to decide, after recording of evidence, as to who out of the spouses is entitled to retain custody of the minor---High Court in the proceedings under S.491, Cr.P.C. has to consider the age of minor and his welfare, keeping in mind the law that when a minor child of tender age is recently removed from the custody of his mother, the mother would be entitled to his interim custody.

Mst. Khalida Parveen v. Muhammad Sultan Mehmood and another PLD 2004 SC 1 rel.

Touqir Ahmed for Petitioner.

Zafar Iqbal for Respondents.

2021 Y L R 1288

[Peshawar]

Before Qaiser Rashid Khan, J

CHAIRMAN FEDERAL BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, ISLAMABAD---Petitioner

Versus

SANAN ULLAH FARMAN and 4 others---Respondents

Writ Petition No. 661-P of 2020 (with Interim Relief), decided on 22nd June, 2020.

Specific Relief Act (I of 1877)---

----S. 42--- Suit for declaration---Correction of date of birth---Scope---Plaintiff filed suit against Education Board (Board) for declaration to the effect that his correct date of birth was 25-06-1998 but it had incorrectly been mentioned as 25-09-1996 in his matriculation certificate and required rectification---Trial Court and appellate court concurrently decreed the suit---Validity---Admission and Withdrawal Register as well as School Leaving Certificate of the plaintiff showed his date of birth as 25-06-1998 while his admission date was mentioned as 04-04-2002---Date of birth of sister of plaintiff as per her matriculation certificate was 13-03-1997, thus, keeping in view the date of birth of plaintiff, the age gap between the siblings was about fifteen months, which was quite natural---Board was also unclear about the actual date of birth of the plaintiff because, on the one hand, it had placed reliance on Admission Form of plaintiff showing his date of birth as 25-06-1996 and on the other hand, plaintiff's Registration Card reflected his date of birth as 25-09-1996---Courts below had rightly appreciated the evidence on the record while decreeing the suit---Constitutional petition, being devoid of substance, was dismissed, in circumstances.

Muhammad Jamal Afridi for Petitioner.

Aman Ullah for Respondent No.1.

2021 Y L R 1302

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali and Wiqar Ahmad, JJ

GUL MUHAMMAD---Petitioner

Versus

STATE through Superintendent District Jail, Temargara---Respondent

Writ Petition No. 411-M of 2020, decided on 16th March, 2020.

Penal Code (XLV of 1860)---

----S. 302(b)---Pakistan Arms Ordinance (XX of 1965), 13---Criminal Procedure Code (V of 1898), Ss. 382-B, 35 & 397---Constitution of Pakistan, Art. 199---Constitutional petition--- Qatl-i-amd, possessing illicit weapon---Hardship case---Sentence on offender already sentenced for another offence---Petitioner had undergone two separate trials under two FIRs and had been convicted and sentenced for both the offences separately---Petitioner was undergoing his sentence under S.302, P.P.C. without having the benefit of S.382-B, Cr.P.C. and his probable date of release would be 23.09.2021, as stated by the jail authorities in their comments---After completing his sentence under S.302(b), P.P.C., petitioner would then start suffering his sentence of three years imprisonment under S. 13 Pakistan Arms Ordinance, 1965 and his probable date of release was 22.03.2023---Petitioner had further contended in his petition that he had been bedridden, lying in jail premises without having proper attendance of family members and was lying in a miserable condition, thus, prayed for ordering of concurrent running of sentences; grant of benefit under S.382-B, Cr.P.C.; grant of remission to the convict/petitioner for his remaining sentence of imprisonment---Validity---Held, charitable view is normally taken by courts of law in the matter of sentences affecting deprivation of life or liberty of a person while exercising enabling powers under Ss.35 & 397, Cr.P.C.---All the offences for which the petitioner had been convicted by the courts below had been committed in one and the same transaction and thus, it would serve the interests of justice if all the sentences of imprisonment passed against the petitioner were ordered to run concurrently---Both the issues i.e. concurrent running of the sentences as well as giving benefit under S.382-B, Cr.P.C. did not seem to be a deliberate decision of the court, recorded expressly or alluded to impliedly, but appeared to be the result of lack of proper assistance--- High Court, in circumstances, directed that both the sentences i.e. sentence under S.302(b), P.P.C. as well as sentence under S.13 Pakistan Arms Ordinance, 1965 to run concurrently---Benefit of S.382-B, Cr.P.C. was also ordered to be given to the petitioner in his sentence of life imprisonment under S.302(b), P.P.C.---Jail authorities did not deny the state of health of petitioner, as described in the Constitutional petition and annexed report of Medical Officer of District Jail with their comments---Petitioner was an old and infirm person who was bedridden and lying in jail hospital---Law and Constitution vested the powers of granting of remission in various authorities on the executive side---Prison Rules contained in the Jail Manual also clothed the jail authorities with the powers to release a lifer who had undergone a minimum of fifteen years substantive imprisonment under R.140 of Jail Manual---Law vested powers with a purpose and object---If such a discretion or power was not exercised in appropriate and deserving cases, the very purpose of law might be defeated---High Court observed that, there would be hardly a case more appropriate for exercise of such discretion or power than the present case, Superintendent District Jail was directed to place the case of petitioner for grant of remission to the appropriate authority---Secretary Home, would also consider release of petitioner on probation under the "Good Conduct Prisoners' Probational Release Act, 1926", pending decision of the appropriate authority regarding grant of the remission---Constitutional petition was disposed of accordingly.

2000 YLR 1861; PLD 2008 Lah. 497; 2010 PCr.LJ 1681; Rahib Ali v. The State 2018 SCMR 418; Mst. Shahista Bibi and another v. Superintendent, Central Jail Mach and 2 others PLD 2015 SC 15; Hamid and another v. Shafiq-ur-Rehman and another 2013 SCMR 583; Javaid Iqbal v. S.H.O. and others 2013 PCr.LJ 1394; Qasim v. Federation of Pakistan PLD 2016 Sindh 1; Muhammad Azam v. Federation of Pakistan and others 2018 MLD 1176 and Muhammad Anwar v. Muhammad Akram and others PLD 2016 SC 65 rel.

Jamalud-Din for Petitioner.

Haq Nawaz, Astt: A.G. for the State.

2021 Y L R 1373

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, JSIRHIND ZADA---Petitioner

Versus

AMIR ZADA and 10 others---Respondents

Civil Revision No. 284-M with C.M. No.557 of 2015, decided on 20th February, 2020.

(a) Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----Ss. 135 & 137---Civil Procedure Code (V of 1908), S. 11---Res-judicata, principle of---Applicability---Partition of land--- Petitioner-plaintiff after withdrawing his application for partition of land before revenue authorities filed civil suit before Civil Court---Suit filed by petitioner-plaintiff was concurrently rejected by Trial Court and Lower Appellate Court, as barred by principle of res-judicata---Validity---Withdrawal of application for partition before revenue forum did not constitute a bar in the way of filing subsequent suit before Civil Court---Application for partition filed before Revenue Court under S.135 of Khyber Pakhtunkhwa Land Revenue Act, 1967, was filed before such a forum which was not competent to grant relief in subsequent suit---Such proceedings were not decided on merit but were disposed of on the basis of compromise and matter in issue was not directly and substantially in issue in proceedings of partition application---High Court set aside judgment and decree passed by two Courts below and the matter was remanded to Trial Court for decision afresh---Revision was allowed accordingly.

PLD 2018 SC 322; Abdul Ghafoor v. Chief Settlement Commissioner and another 1985 SCMR 464; Hafiz Noor Muhammad and others v. Ghulam Rasul and others 1999 SCMR 705; Muhammad Saleem Ullah and others v. Additional District Judge, Gujranwala and others PLD 2005 SC 511 and Muhammad Akram and others v. Member, Board of Revenue and another 2007 SCMR 289 rel.

2015 YLR 1550; 2016 YLR Note 135; 2019 CLC 1613; 1998 CLC 1414; 2016 YLR 2411; 2017 YLR 222; 2017 CLC Note 43; Henderson v. Henderson (1843) 3 Hare 100; Virgin Atlantic case [2013] UKSC 46 and Province of Punjab through Chief Secretary, and 5 others v. Malik Ibrahim and Sons and another 2000 SCMR 1172 ref.

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

----S.11 & O.XXIII, R.1---Res judicata, principle of---Simply withdrawal of earlier suit does not bar subsequent suit by principle of res judicata.

Muhammad Akram and others v. Member, Board of Revenue and another 2007 SCMR 289; Mst. Ghulam Sughran and others v. Sahibzada Ijaz Hussain and others PLD 1986 Lah. 194 and Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344 rel.

Asghar Ali for Petitioner.

Sultan Ali Shah for Respondents.

2021 Y L R 1415

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim, J

MUHAMMAD ZADA---Petitioner

Versus

The STATE through Additional Advocate General and 2 others---Respondents

Criminal Miscellaneous (Q.P.) No.26-M of 2020 (and other connected petitions), decided on 28th September, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A, 523 & 550---Superdari of case property---Scope---Seizure of non-customs paid vehicles having tempered, welded, refitted, re-stamped chassis plates under Ss.550/523, Cr.P.C.---Superdari of vehicles, refusal of---Petitioner applied for supurdari of the vehicles but the Magistrate rejected the applications and District Judge also rejected the revision petitions---Petitioners, inter alia, contended that they were bona fide purchasers of the vehicles in questions and there was no evidence on record which could show that the vehicles were either stolen or used in any crime---Validity---Vehicles were allegedly seized by the police under Ss.523/550, Cr.P.C. and during inquiry under S.156(3), Cr.P.C., the chassis plates of the vehicles in question were found tempered, welded, refitted, re-stamped, not decipherable for rubbing off their chassis plates, etc., according to the respective reports of the Forensic Science Laboratory---Presumption of truth was attached to the Forensic Science Laboratory Reports---Some of the vehicles, though, were registered with different Excise and Taxation Offices, however, after the alleged purchase by the petitioners, most of them had not so far been transferred in their names---Section 23 of the Provincial Motor Vehicles Ordinance, 1965, restricted use of the vehicle which was either not registered/transferred by the owner in a specified period of time from the date of its purchase---Owner was bound to transfer the vehicle within thirteen days of its purchase, however, in none of the cases, the law pertaining to registration of vehicles had been followed---Upon completion of inquiry/investigation in the matter and examination of the vehicle through Forensic Science Laboratory, the police completed its job---Police was not required to find out that who had tampered the vehicle because it was not the act of an ordinary person---Purchaser was required to take due care at the time of purchase of the vehicle---Impugned orders were based on correct and legal observations of the courts below to which no exception could be taken--- Petitions being meritless were dismissed accordingly.

Ch. Maqbool Ahmed v. Customs, Federal Excise and Sales Tax, Appellate Tribunal and 3 others 2009 SCMR 226; Ali Bahadar v. Toyota Indus Motor Company LTD. through Chief Executive/ Managing Director and 3 others 2019 YLR 622 and Government of Khyber Pakhtunkhwa through Secretary Excise and Taxation Department Civil Secretariat, Peshawar and others v. Sarfraz Khan and another 2020 SCMR 1410 rel.

Javid Ahmad for Petitioner.

Razauddin Khan, A.A.G. for the State.

2021 Y L R 1474

[Peshawar]

Before Ahmad Ali, J

GHULAM RASOOL---Petitioner

Versus

TARIQ MAHMOOD and others---Respondents

Writ Petition No. 7444-P of 2019, decided on 6th January, 2020.

Khyber Pakhtunkhwa Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Civil Procedure Code (V of 1908), S. 12(2)---Eviction of tenant---Bar to further suits---Failure to pay rent---Scope---Respondent's application for eviction of tenant was allowed and during the execution proceedings, petitioner stepped in the court with an application under S.12(2), C.P.C. claiming to be tenant of the demised premises since 1940 as before him, his father was tenant in the demised premises---Courts below concurrently dismissed the application of petitioner---Validity---Petitioner had produced some paid electricity and gas bills in support of his version but the electricity bill portrayed the number of shop other than the demised premises and the gas bill did not contain any shop number---Petitioner did not produce any recent rent receipt as to the payment of rent and only produced two receipts which were twenty five years old---Said receipts could not be taken as conclusive proof of continuation of the tenancy---Petitioner took plea that the respondent stopped receiving rent from him for the last three years but he did not pay rent through money order or through any other permissible means---High Court observed that even if the petitioner was impleaded in the eviction petition he would be evicted from the demised premises on the basis of default in payment of rent---Petitioner had failed to point out any illegality, irregularity or jurisdictional defect in the concurrent findings of law and fact of the forums below---Constitutional petition was dismissed in limine.

Aman Ullah for Petitioner.

2021 Y L R 1517

[Peshawar]

Before Rooh-ul-Amin Khan, J

Syed MAQBOOL SHAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous B.A. No. 134-P of 2021, decided on 25th January, 2021.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, armed with deadly weapon---Bail, refusal of---Delay in conclusion of trial---Scope---Accused sought bail on the ground of non-conclusion of trial within a period of three months as stipulated by the High Court---Held, such directions were alien to S.497, Cr.P.C., which was the mother provision governing the grant or refusal of bail to accused charged with various offences---Application being premature was dismissed. [p. 1520] A

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

----Ss. 173, 175 & 154---Report of police officer---Power to summon persons---Information in cognizable cases---Scope---Section 173, Cr.P.C. provides that every investigation shall be completed without unnecessary delay and as soon as it is completed, the Officer Incharge of the Police Station shall through the Public Prosecutor forward to a Magistrate empowered to take cognizance of the offence on a police report, a report, in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, if so, whether with or without sureties---First proviso to S.173, Cr.P.C., provides that where investigation is not completed within a period of fourteen days from the date of recording of the First Information Report under S.154, Cr.P.C., the Officer Incharge of the Police Station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the Provincial Government, stating therein the result of the investigation made until then and the court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the court decides that the trial should not so commence---Section 175(5), Cr.P.C. provides that where the Officer Incharge of a Police Station forwards report under subsection (1) he shall along with the report produce the witnesses in the case, except the public servants, and the Magistrate shall bind such witnesses for appearance before him or some other Court on the date fixed for trial.

(c) Criminal trial---

----Public prosecutor---Role of---Scope---Prosecutor plays a pivotal role in the administration of criminal justice---Normally, the role of the Public Prosecutor commences on the completion of investigation by Investigation Agency and presenting the case to District Public Prosecutor and putting the challan in the court---Foremost objective of the Public Prosecutor is to ensure a fair trial of the accused by assisting Trial Courts in the disposal of cases with an aim to deliver a prompt, efficient and speedy service to the litigants for achieving the ends of justice, ensuring judiciousness and speedy legal remedies---Apart from conducting cases before the Trial Court the Public Prosecutors are also vested with the powers to evaluate the evidence in each case and make their recommendations for filing revision petitions or appeals against impugned orders and judgments in the High Court.

(d) Criminal trial---

----Dispensation of justice and enforcement of rights are the two chief objectives a civilized community is supposed to accomplish---Timely disposal of dispute and redressal of grievances are two sure signs of effective administration of justice---Criminal justice system requires that a person accused of a crime is brought to justice as speedily as possible, if he is found guilty, he is punished and if he is found to be innocent, he is discharged or acquitted---Justice delayed is justice denied comes true when a criminal trial remains pending indefinitely for no reason whatsoever.

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

----S. 494---Effect of withdrawal from prosecution---Scope---Public Prosecutor has the power to withdraw prosecution if reasonable ground exists under S.494, Cr.P.C.---Consent will be given by the Public Prosecutor only if public justice in the larger sense is promoted rather than subverted by such withdrawal.

Akbar Zaman Khattak for Petitioner.

Amir Nawaz Durrani for the State.

Nemo for the Complainant.

2021 Y L R 1560

[Peshawar (Abbottabad Bench)]

Before Ahmad Ali, J

MEHBOOB-UR-REHMAN and 2 others through Special Attorney---Petitioners

Versus

The STATE and another---Respondents

Criminal Bail Miscellaneous Application No. 182-A of 2020, decided on 8th April, 2020.

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

----Ss. 497, 164 & 364---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Qatl-i-amd, rioting, armed with deadly weapon and common object---Bail, grant of---Further inquiry---Scope---Accused persons were charged for pre-planned murder of the deceased---Main accused had confessed to his guilt by making a statement under Ss.164/364, Cr.P.C.---Evidentiary value of the confessional statement of main accused was yet to be determined at trial, however, tentative assessment of the same revealed that he had exonerated the accused persons and had claimed that he alone was involved in the murder of deceased--- Case of accused persons fell within the ambit of further enquiry---Petition for grant of bail was allowed, in circumstances.

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

----S. 497---Penal Code (XLV of 1860), S. 149--- Bail--- Common object---Vicarious liability---Scope---Question of vicarious liability is always to be seen by the Trial Court.

2010 SCMR 1219, 1986 SCMR 1232 and 2011 SCMR 902 ref.

Faqeer Muhammad for Petitioners.

Raja Muhammad Zubair, A.A.G. for the State.

Shad Muhammad Khan for the Complainant.

2021 Y L R 1575

[Peshawar]

Before Muhammad Naeem Anwar, J

ZAHIR ULLAH and 15 others---Petitioners

Versus

SAMIN JAN KHAN and 6 others---Respondents

Civil Revision No. 1237-P of 2019, decided on 10th July, 2020.

Civil Procedure Code (V of 1908)--

----Ss. 12(2) & 115--- Revisional jurisdiction of High Court---Case decided, principle of---Applicability---Interim/interlocutory order---Concurrent findings of two Courts below---Petitioner-plaintiff resisted application under S.12(2), C.P.C. filed by respondent-applicant seeking setting aside of ex-parte judgment and decree---Trial Court and Lower Appellate Court found application under S.12(2), C.P.C. as maintainable--- Validity--- Order assailed by petitioner-plaintiff was an interlocutory/interim order, which did not fall within the four corners of 'case decided' for invoking jurisdiction of S.115, C.P.C.---Order of Trial Court was well reasoned by holding application as maintainable and the same could not be challenged in revision petition---Matter was open for both parties to prove their respective contentions as alleged by them in their pleadings---Concurrent findings of two Courts below could not be set at naught unless the same were perverse, illegal or suffering from jurisdictional defect---Revision was dismissed, in circumstances.

1992 SCMR 718 and Nesle Milk-pack Limited v. Classic Needs Pakistan (Pvt.) and 3 others 2006 SCMR 21 rel.

Ijaz Ahmed for Petitioners.

2021 Y L R 1584

[Peshawar (Bannu Bench)]

Before Ms. Musarrat Hilali and Sahibzada Asadullah, JJ

SHAH NARAZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 22-B of 2018, decided on 4th March, 2020.

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

----S. 9(c)---Possession of twenty two kilograms of Charas and 200 grams of gardah charas--- Appreciation of evidence---Prosecution case was that twenty two kilograms and 200 grams of gardahcharas concealed in the CNG cylinder fixed in the trunk of the motorcar of accused was recovered---Accused was arrested on the spot and huge quantity of narcotic was recovered from his motorcar on his pointation---Test samples were dispatched to the office of Chemical Examiner for analysis wherefrom a positive report was received---Prosecution produced as many as 12 witnesses and all the witnesses remained consistent on material aspects of the case---Motorcar was taken into possession and no rival claimant turned up to claim its ownership and even the accused could not disassociate himself from the car in question---Witnesses were put to lengthy cross-examination but nothing favourable could be extracted from their mouth to favour the accused---Record was silent as to mala fide of persons who arrested and effected the recovery---Quantity recovered was huge and there was no reason that witnesses were so interested that the contraband was planted against the accused to implicate him in the case---Nothing on record that either the Investigating Officer or the Seizing Officer had any personal grudge with the accused, which could result in planting the narcotic against the convict/accused---Mode and manner of arrest had left no room to disbelieve the prosecution---Seizing and Investigating Officer were thoroughly cross-examined regarding the recovery, its weighment and dispatch to the office of Chemical Examiner, but nothing was brought which could discredit those witnesses, as they went coherent and consistent---Circumstances established that the prosecution had proved its case against the accused---Appeal against conviction was dismissed accordingly.

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

----S. 9(c)---Possession of twenty two kilograms of charas and 200 grams of gardah charas---Appreciation of evidence---Delay of about two days in sending the samples for analysis---Effect---Prosecution case was that twenty two kilograms and 200 grams of gardah charas concealed in the CNG cylinder fixed in the trunk of the motorcar of accused was recovered---In the present case, recovery was effected on 02.04.2016 whereas the test samples were received by the Laboratory on 04.04.2016, which excluded the possibility of tempering with the parcels while in transit---No mala fide was suggested to the witness who took the samples to the Laboratory for its chemical analysis and even his veracity was not questioned---Circumstances established that the prosecution had proved its case against the accused---Appeal against conviction was dismissed accordingly.

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

----Ss. 9(c) & 29---Criminal Procedure Code (V of 1898), S. 103---Possession of twenty two kilograms of charas 200 grams of gardah charas---Appreciation of evidence---Association of private witnesses--- Scope--- Prosecution case was that twenty two kilograms and 200 grams of gardahcharas concealed in the CNG cylinder fixed in the trunk of the motorcar of accused was recovered---Allegedly, as no private witness was associated with the process of recovery and that even the Investigating Officer did not record the statement of the informer, thus, the recovery was effected in utter disregard of law---Section 29 of the Control of Narcotic Substances Act, 1997, had done away with such formalities---Circumstances established that the prosecution had proved its case against the accused---Appeal against conviction was dismissed accordingly.

(d) Criminal trial---

----Police witnesses---Reliance---Scope---Police Officials are as good witnesses as others are, that too when no mala fide is either alleged or proved against them.

Abdur Rashid v. The State 2009 SCMR 306 rel.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 164---Possession of twenty two kilograms of charas and 200 grams of gardah charas---Appreciation of evidence---Confessional statement of accused---Scope---Prosecution case was that twenty two kilograms of charas and 200 grams of gardah charas concealed in the CNG cylinder fixed in the trunk of the motorcar of accused was recovered---Accused after his arrest was produced before the Judicial Magistrate, where he confessed his guilt and explained as to how he came into possession of the contraband and he also named the other accused as the owner and himself attained the status of a carrier---Judicial Magistrate was examined, who was thoroughly cross-examined, but nothing detrimental to the case of the prosecution was brought on record---Judicial Magistrate stated that the convict/ accused was produced before him and sufficient time was provided to him to think over again and again and after fulfilling the legal formalities his statement was recorded---Accused was produced on 05.04.2016 before the Judicial Magistrate, where he opted to confess and so his confession was recorded---Judicial Magistrate while recording the confession of the accused had followed the procedure and also put the needed questions and it was then he got satisfied and recorded the statement---Circumstances established that the prosecution had proved its case against the accused---Appeal against conviction was dismissed accordingly.

Imran Ali Shah for Appellant.

Shahid Hameed Qureshi, Addl. A.G. for the State.

2021 Y L R 1613

[Peshawar]

Before Ikamullah Khan and Syed Muhammad Attique Shah, JJ

AYAZ alias IMRAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 730-P of 2020, decided on 25th November, 2020.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that six kilograms of charas were recovered from the vehicle of the accused---Complainant stated that his personal monogram had an inscription of MK---No explanation was offered as to why the parcels did not contain the monogram of Seizing Officer, as such it had created a serious doubt regarding the seizer of contraband---Complainant admitted in his cross-examination that he kept 1/1 monogram inside each parcel---Said witness stated that if the case property had no monogram inside the parcel the same would have not been sealed by him at the spot---Fact of placing 1/1 sample monogram MK inside the parcel was also admitted by recovery witness in his cross-examination, however, when the Trial Court de-sealed the case property on the request of defence, there was no sample monogram inside the parcel---Held, in circumstances, it could not be concluded that the case property produced before the Trial Court was the same which was recovered from the vehicle---Circumstances established that the prosecution had miserably failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Akhtar Iqbal v. The State 2015 SCMR 291 rel.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Prosecution case was that six kilograms of charas were recovered from the vehicle of the accused---Complainant stated that nothing was handed over to the Investigating Officer when he came to the spot for investigation---Said fact had been contradicted by recovery witness in his cross-examination by admitting that when the Investigating Officer came to the spot, case property was present on the spot---Case property including the vehicle was delivered to the Investigating Officer on the spot---Admittedly, nothing had been recovered from the accused like Driving Licence or any other document which suggested that he was driver of the said vehicle---Even route permit of the vehicle had not been obtained as to whether the said vehicle had any permission to ply on "P" to "C" road or not---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----R. 6---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of charas---Appreciation of evidence---Report of Government Analyst---Protocols/procedure--- Scope--- In the present case the Forensic Science Laboratory Report did not signify the test protocols that were applied to carry out the test, therefore, the mandatory requirement of law provided by R. 6 had not been complied with in its letter and spirit---Non-compliance of the said Rule would render the said report in conclusive, suspicious and untrustworthy---Said report could not be relied upon qua maintaining the conviction and sentence of the accused, in circumstances---Prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Khair-UI-Bashar v. The State 2019 SCMR 930; Muhammad Boota v. The State and another 2020 SCMR 196 and Qaiser Javed Khan's case PLD 2020 SC 57 rel.

(d) Criminal trial---

----Appreciation of evidence---Principle---Albeit, safe administration of justice mandated the courts to be conscious about the quality of evidence produced before the court in reaching to a correct and just decision of the case. [p. 1619] F

Shahzada v. The State 2010 SCMR 841 and Abdul Baqi v. The State 2020 PCr.LJ 321 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---If a reasonable doubt occurred in the case of prosecution, its benefit would be given to the accused as a matter of right and not as grace.

Noor Alam Khan and Shabina Noor for Appellant.

Mujahid Ali Khan, A.A.G. for the State.

2021 Y L R 1680

[Peshawar (D.I. Khan Bench)]

Before Sahibzada Asadullah, J

FAHEEM---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail No. 380-D of 2020, decided on 20th November, 2020.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd and common intention---Bail, grant of---Delayed FIR---Contradictory statements---Tender age of accused---Scope---Complainant alleged that he received information that his brother visited the house of sister of accused, at about 02:00 a.m. as he had friendly terms with her; that the accused along with co-accused saw the deceased with his sister in her room, apprehended him, tied his hands, took him to the fields and committed his murder---First Information Report was lodged with an inordinate and unexplained delay---Complainant had not disclosed the source of information regarding the occurrence in his report---Sister of accused in her statement under S.161, Cr.P.C. had charged the accused whereas in her statement recorded under S.164, Cr.P.C., she had resiled from her earlier stance by exonerating the accused from the commission of offence, which made the case of accused that of further inquiry---Call data which was necessary evidence to show contact between the deceased and sister of accused was not placed on record---No doubt, pistol was recovered on the pointation of accused but the same was admittedly in the ownership of absconding co-accused who happened to be the father of accused---Evidentiary value of such piece of evidence could better be determined in the case of the co-accused---Accused was of tender age which too tilted the scale in his favour---Petition for grant of bail was allowed, in circumstances.

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

---S. 497---Bail---Benefit of doubt---Scope---Benefit of doubt can be extended even at bail stage.

Muhammad Faisal v. The State and another 2020 SCMR 971 ref.

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

----S.497---Bail---Scope---Accused cannot be kept in jail as punishment merely on the ground that he is directly charged for an offence falling under the prohibitory clause of S.497, Cr.P.C., because a mistaken relief of bail may be repaired by convicting the accused, if proven guilty, but no proper reparation can be offered for his unjustified incarceration, albeit, his acquittal in the long run.

Zaigham Ashraf v. The State and others 2016 SCMR 18 rel.

Ahmad Ali Khan for Petitioner.

Adnan Ali, Asstt: A.G. for the State.

Tanvir Ahmed Baloch for Respondents.

2021 Y L R 1686

[Peshawar (Abbottabad Bench)]

Before Ahmad Ali, J

AURANGZEB alias BILU---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 96-A of 2020, decided on 24th February, 2020.

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

----S. 497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17---Haraabah---Bail, grant of---Further inquiry---Scope---Accused along with others was alleged to have snatched a vehicle of complainant along with registration book, driving licence and his CNIC---Accused was not named in the FIR, rather the complainant identified him through his photograph---Statement of the complainant under S.164, Cr.P.C. was recorded after about 28 years of the occurrence---No incriminating recovery could be effected from the accused nor he led the police to the place of occurrence for the purpose of pointation---Identification of the accused after lapse of 28 years created a question which could only be resolved after recording prosecution evidence---Petition for grant of bail was allowed, in circumstances.

2018 MLD 125; PLJ 2017 SC 115; 2016 SCMR 1520; 2016 SCMR 1593; PLD 2012 SC 222; 2015 PCr.LJ 1005; 2012 YLR 2090 and 1996 SCMR 1845 ref.

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

----S. 497---Bail---Accused in custody of sureties---Scope---Bail does not mean acquittal of accused but only change of custody from Government agencies to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever required to be produced.

Haji Muhammad Nazir v. State 2008 SCMR 807 ref.

Asif Masood Tanoli for Petitioners.

Malik Amjid Ali for the Complainant.

Sardar Muhammad Asif, A.A.G. for the State.

2021 Y L R 1711

[Peshawar (Bannu Bench)]

Before Ms. Musarrat Hilali and Sahibzada Asadullah, JJ

NOOR ZAMAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 236-B of 2018, decided on 13th October, 2020.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused made firing upon the complainant and her husband, due to which husband of complainant died while complainant was injured---Motive for the offence was stated to be a dispute over use of pathway---Record showed that the complainant was examined by the Medical Officer at 8:00 a.m.---Complainant reported the matter at 8:20 a.m. and at the same time the injury sheet and inquest report were prepared and injured was sent to the Medical Officer for treatment---If the Medical Officer examined the lady at 8:00 a.m. the time when the report was not yet made, then how he endorsed the injury sheet which was prepared at 08:20 a.m. and the report was made at 08:10 a.m.---Medical Officer did not mention as to whether the complainant was fully conscious, capable to talk and oriented in time and space, so much so, her blood pressure and pulse rate were not recorded---Medical Officer stated that at the time of her examination the complainant was in critical condition---Said witness further stated that besides other major organs of the body, her lungs were injured and according to medical jurisprudence, when the lungs got injured, it turned hard to breath---Medical Officer went on to say that neither he issued a certificate regarding her capability to talk nor he gave his opinion, so much so he did not endorse the murasila---Scribe stated that the complainant reported the matter, whereafter, he prepared injury sheet---If the report was made in the hospital and the Medical Officer was available what prevented the scribe to request the doctor for a fitness certificate to ascertain as to whether the injured was capable to talk or not---Scribe did not take the pain to call for the doctor so that the report of the complainant could be taken in his presence and even after the report was made no endorsement of the Medical Officer was requested on the murasila---Conduct of scribe was not above board and also that of the Medical Officer who examined the injured---Cumulative effect of the said facts was that the injured was brought to the hospital by the co-villagers and the initial investigation was conducted prior to the report and it was on arrival of some interested persons that the matter was shown reported by the complainant and the accused was charged---Circumstances established that the prosecution had failed to prove its case against accused---Appeal against conviction was allowed, in circumstances.

Khyber Khan v. Shahid Zaman and another 2019 PCr.LJ 979 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Medical evidence---Scope---Prosecution case was that the accused made firing upon the complainant and her husband, due to which husband of complainant died while complainant was injured---Record showed that the Medical Officer categorically stated that the patient/ complainant was in a critical condition with her major organs injured including lungs---Complainant being in critical condition was referred to Civil Hospital for further management and it was on the next day the complainant breathed her last---Medical Officer, who conducted autopsy on the body of the deceased, explained that most of the major organs of the body were damaged/injured---Complainant, in circumstances was not capable to talk and was unable to report---Circumstances established that the prosecution had failed to prove its case against accused---Appeal against conviction was allowed, in circumstances.

Tahir Khan v. The State 2011 SCMR 646 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of blood-stained earth and crime empties---Scope---Prosecution case was that the accused made firing upon the complainant and her husband, due to which husband of complainant died while complainant was injured---Investigating Officer visited the spot and recovered blood-stained earth along with four empties of 30 bore pistol---Though, the recoveries were effected on 19.7.2014, but, same were received to the Forensic Sciences Laboratory on two different dates, the blood-stained earth along with garments of the deceased were received on 24.7.2014, whereas the empties on 06.8.2014---Investigating Officer could not explain as to why the empties were received much later than the garments and even he could not explain that where and in whose custody those empties were lying---Investigating Officer expressed his inability to confirm the same---Investigating Officer was duty bound to record the statement of the Moharrir of the concerned Police Station and to place on record a copy from Register No.19, but neither the Moharrir was examined to confirm the safe custody nor an abstract from the said register was collected and placed on the file---Investigating Officer did not take the pain to examine the person, who took those empties to the Forensic Sciences Laboratory---Forensic Science Laboratory Report in respect of the empties gained no ground and it could not be taken against the accused---Circumstances established that the prosecution had failed to prove its case against accused---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Motive was not proved---Effect---Prosecution case was that the accused made firing upon the complainant and her husband, due to which husband of complainant died while complainant was injured---Motive was stated to be a dispute over thoroughfare, but admittedly the complainant and her husband were not the residents of the village where the unfortunate incident occurred---Complainant and her husband had migrated from there and were temporarily residing in some other place---Accused was the permanent resident of the village where occurrence took place---Investigating Officer did not probe into the matter and he did not record the statement of any independent witness to confirm the dispute---Owner of the house where complainant and her husband were residing was examined as witness, but he did not utter a single word in that regard---Circumstances established that the prosecution had failed to prove its case against accused---Appeal against conviction was allowed, in circumstances.

(e) Criminal trial---

----Motive---Scope---Prosecution was not bound to setup motive in every case but once it was alleged and not proved then ocular account was required to be scrutinized with great caution---Once motive was alleged and not proved then ocular account was required to be scrutinized with great caution.

Hakim Ali v. The State 1971 SCMR 432 rel.

(f) Criminal trial---

----Motive---Scope---Prosecution though was not called upon to establish motive in every case, yet once it had setup a motive and failed to establish, the prosecution would suffer consequences and not the defence.

Amin Ullah v. The State PLD 1976 SC 629 rel.

(g) Criminal trial---

----Absconsion---Scope---Mere absconscion of accused is not 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, however, suspicions 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(a) rel.

Saifur Rehman Khan for Appellant.

Shahid Hameed Qureshi, Addl. A.G. for the State.

Nemo for Respondent.

2021 Y L R 1745

[Peshawar (Bannu Bench)]

Before Muhammad Nasir Mahfooz and Sahibzada Asadullah, JJ

BAD SHAH JAMIL---Appellant

Versus

MUHAMMAD JANBAZ KHAN and another---Respondents

Criminal Appeal No. 124-B of 2017, decided on 4th November, 2019.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Non-availability of justification for the presence of complainant at the spot---Scope---Accused was charged for committing murder of the cousin of complainant, whereas the co-accused made firing upon the complainant, but he escaped unhurt---Motive shown was family honour---Allegedly, the complainant accompanied the deceased to a shop to purchase snuff and cigarette---After purchase the deceased followed complainant from the shop, while he had hardly walked ten paces he heard fire shots and found the accused duly armed with Kalashnikov firing upon the deceased---Both, the complainant and the deceased though, had come with common purpose and left the shop together, if that was so then instead going ahead 15 paces they would have been together in front of the shop at the time of firing---Complainant stated in his court statement that the firing was indiscriminate and the accused exhausted the magazine, if so then the complainant too would have received fire arm injuries---Presence of the complainant on the spot was not free from doubt, the purpose of their presence was to purchase snuff and cigarettes from the shop---Neither the cigarettes nor the snuff were produced to the Investigating Officer, so much so no attempt was made to record the statement of the shop-keeper to confirm the purpose of their presence and to convince the court of their presence at the place of occurrence---Witness in his court statement admitted that all the shop-keepers came out and witnessed the occurrence, but none come forward to confirm the time and manner of the occurrence---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

Abid Ali and 2 others v. The State 2011 SCMR 208 rel.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Ocular and medical evidence---Conflict---Effect---Accused was charged for committing murder of the cousin of complainant, whereas the co-accused made firing upon the complainant, but he escaped unhurt---In the present case, deceased was shown in sitting position, then the seat of injuries on the person of the deceased did not support the stance of the complainant and there was an open conflict between the medical evidence and ocular account---If in fact the stances so taken were placed in juxtaposition then the medical evidence did not support the case of the prosecution, if the deceased was sitting then his left was exposed to the assailant and in that situation the entry wounds which found its exits on the left side of his body were against the medical evidence and so was the case while walking with his back exposed to the assailant---Witness stated that the accused resorted to indiscriminate firing, if so, then why no more empties were recovered as admittedly, only three empties of 7.62 bore were recovered from the spot---Even no bullet marks on the surrounding walls were noticed---Empties were recovered from a considerable distance from the position of the accused that too towards left of the accused which spoke nothing but mala fide on part of the complainant and it strengthened the stance taken by the defence that the complainant was not present at the time when the deceased was done to death---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Motive was not proved---Scope---Accused was charged for committing murder of the cousin of complainant, whereas the co-accused made firing upon the complainant, but he escaped unhurt---Record showed that the alleged motive was that of family honour and the prosecution witnesses admitted of being from one family with a common motive then why only the deceased was targeted and rest of the witnesses, if present on the spot, were spared---Said fact gave no other inference but to hold that the witnesses were chance and interested witnesses---No efforts were made either by the Investigating Officer or the complainant to bring something concrete on record to connect the accused with the offence---No independent witness came forward to support and explain that what kind of dispute between the parties was, which led the accused to commit the murder of the deceased---Motive so alleged could not be believed because if all were connected then why only the deceased was done to death and rest of the witnesses were left unhurt---Motive had not been proved---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

Muhammad Akram v. The State 2009 SCMR 230 rel.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Contradictions and improvements in the statements of witnesses---Scope---Accused was charged for committing murder of the cousin of complainant, whereas the co-accused made firing upon the complainant, but he escaped unhurt---Complainant stated in his report that the occurrence was also witnessed by the first cousins of the deceased---Witness/cousin of deceased stated that at the time of occurrence, he along with other witness was digging the soil and they saw the accused while firing at the deceased---Distance between the deceased and that witness stated to be 93/96 paces which came out to be some 260 feet and in such a long distance that was humanly impossible to recognize/ identify a person with a weapon in his hand---Neither the Investigating Officer collected the instruments which they used for digging the soil nor the dug earth was shown in the site-plan---Presence of said witnesses at the time of occurrence was not established on record, but being closely related they were later-on procured to charge the accused for commission of the offence---Witnesses went in glaring contradictions and they suffered with dishonest improvements with the only purpose to bring their statement in line with the prosecution case---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

Abdul Jabbar alias Jabbari v. The State 2017 SCMR 1155 rel.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of about one hour and thirty minutes in lodging the FIR---Scope---Accused was charged for committing murder of the cousin of complainant, whereas the co-accused made firing upon the complainant, but he escaped unhurt---Record showed that the deceased was fired at 09:30 a.m. whereas the matter was reported to the police at 11:00 a.m.---Distance between the spot and the police station was about 5/6 kilometres---Prosecution failed to explain as to how that abnormal delay in reporting the matter occasioned---None of the two witnesses, i.e., the complainant and eye-witness, were the witnesses of identification before the police at the time of preparation of the inquest report and also during the post-mortem before the doctor in the hospital---Had the witnesses been present then they would have surely identified the deceased at both the said places, but in fact they were procured and after consultation and deliberations the accused with the other accused were charged after preliminary investigation---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

State through Advocate- General, N.W.F.P., Peshawar v. Shah Jahan PLD 2003 SC 70 rel.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of crime empties from the spot---Reliance---Scope---Accused was charged for committing murder of the cousin of complainant, whereas the co-accused made firing upon the complainant, but he escaped unhurt---Empties collected from the spot were not sent to the Forensic Science Laboratory with the request as to whether those empties especially, the three recovered from the spot were fired from one or different weapons---Accused was arrested but at the time of arrest nothing incriminating was recovered from his possession so much so the weapon of offence---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

Jalal-ud-Din Akbar Azam Khan Gara for Appellant (heard on 22-10-2019).

Shahid Hameed Qureshi Addl:A.G. for the State.

Muhammad Rashid Khan Dirma Khel and Malik Akhtar Nawaz Khan Khattak for other Respondents (heard on 4-11-2019).

2021 Y L R 1862

[Peshawar (Bannu Bench)]

Before Sahibzada Asadullah, J

MUHAMMAD NAEEM KHAN---Petitioner

Versus

Mst.NAZILAT-UR-REHMAN and 2 others---Respondents

Writ Petition No. 755-B of 2019, decided on 21st January, 2021.

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

----S. 5, Sched.---Suit for dissolution of marriage---Scope---Petitioner assailed judgments and decrees passed by courts below whereby respondent's suit for dissolution of marriage was decreed---Validity---Claim of petitioner was that the respondent was in touch with strangers on her mobile phone---Such type of allegations against one's wife and that too without proof led to creation of a sense of cruelty and in the alternative turned the husband unbearable for his wife---No irregularity or illegality was found to have been committed by the courts below---Constitutional petition was dismissed.

(b) Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Suit for recovery of dowry articles---Non-production of receipts--- Scope--- Petitioner assailed judgments and decrees passed by courts below whereby respondent's suit for recovery of dowry articles was decreed---Validity---Respondent had established on record the dowry articles she took to the house of petitioner at the time of rukhsati, and even otherwise, there was no denial of the fact that parents do prepare dowry articles for their daughters---High Court observed that less burden was put on the shoulders of a wife to establish the claim of dowry articles, what to say of producing the receipts so collected and prepared---No irregularity or illegality was found to have been committed by the courts below---Constitutional petition was dismissed.

Shafique Sultan v. Mst. Asma Firdous and others 2017 SCMR 393 rel.

Zahidullah Khan for Petitioner.

Amanullah Jan Khattak for Respondents.

2021 Y L R 1901

[Peshawar]

Before Muhammad Naeem Anwar, J

KHURSHID and others---Petitioners

Versus

ALTAF HUSSAIN and others---Respondents

Writ Petition No. 45-P of 2016, decided on 11th November, 2020.

Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967)---

----Ss. 135, 137 & 172---Land Record Manual, para. 18.6---Partition of land---Consolidation of partition proceedings---Petitioners sought partition of their property in which respondents were proceeded ex-parte and partition was allowed---Revenue authorities declined to set aside ex-parte order but Board of Revenue accepted second revision of respondents and remanded the matter for decision afresh---Validity---When owners of joint holding of different revenue estates intended to separate their respective shares and when in respect of all estates applications were pending adjudication then it was far better in the interest of justice and for the parties that all such applications be decided simultaneously---Consolidating all such applications would be more appropriate so that any dispute with respect to shares, possession, carving out of Tatimma and potentiality of property keeping in view para 18.6 of Land Record Manual, be decided once for all---Applications of different estates of same sub-division could be consolidated, especially when no one was disputing the same---Philosophy and logic for consolidation of partition application was settlement of all kinds of disputes not only to Khewat ( ) but also to survey numbers either of the same or of different holdings ( )---High Court remanded the matter to revenue authorities for consolidated partition proceedings of both revenue estates synchronously---Petition was disposed of accordingly.

2013 CLC 148; Ibrar Ahmad v. Raheem Dad and 8 others 2015 CLC 546; PLD 1966 SC 708 and PLD 1969 SC 65 rel.

Muhammad Amin Khattak Lachi along with Raza Muhammad, Special Attorney for Petitioners.

Javed Ali Ghani for Respondents Nos. 1 to 9

Respondent No.11 in person.

This single order in the instant writ petition shall also decide Writ Petition No.1906-P/2015 as not only the parties in both the petitions are the same but both the petitions are against the same order and common question of law and fact is involved.

1. Facts in brief are that the petitioners of the instant petition had filed an application on 14.12.1999 for partition their property of the estate of Fazal Abad, which was allowed on 23.10.2003. An application for setting aside of ex-parte order was submitted by respondents Nos.1 to 9, which was dismissed by the learned Revenue Officer on 04.06.2004, against which, respondents have filed an appeal before the learned District Collector, Mardan, however, their appeal was dismissed on 13.12.2004. The same order was challenged before learned Revenue Appellate Court, Mardan through revision petition where their revision petition was also dismissed on 02.08.2005. Second revision petition was filed before the Board of Revenue which was accepted and the matter was remanded back to the learned trial Court for decision afresh on 12.06.2008. As in respect of the joint property of the revenue estate of Akbar Abad another partition application was also pending amongst the owners, thus, the respondents have submitted an application for consolidation of partition proceedings of the property situated at Akbar Abad and Fazal Abad, however, the application was turned by the Revenue Officer on 15.02.2012, which order of Revenue Officer was assailed in the Court of District Officer Revenue, Mardan and their appeal was dismissed on 13.06.2012, against which, revision petition was filed before learned Additional Commissioner, Mardan where the revision filed by respondents Nos. 1 to 9 was allowed on 09.10.2012. The petitioners have assailed the order of the learned Additional Commissioner, Mardan before the Board of Revenue through case No.209/2012 which was allowed on 18.03.2014 with the directions that the revenue officer shall continue with the partition proceedings of the applications regarding two revenue estates Fazal Abad and Akbar Abad and at the end the decrees of partition applications be executed simultaneously, however, the request of respondents Nos.1 to 9 for consolidation of partition proceedings was held to be subject to the consent of all the parties. Respondents have filed a Review Petition bearing No.367/MBR-II before the learned SMBR but the same was dismissed on 29.01.2015. The petitioners have assailed the order of Board of Revenue dated 29.01.2015 before this Court through the instant petition.

2. The petitioners of W.P. No.1906-P/2015 have assailed the order of Member Board of Revenue dated 29.01.2015, whereby their application for review against the order dated 18.03.2014 was dismissed.

3. Arguments of the learned counsel for the petitioners, Mr. Muhammad Amin Khattak Lachi, Advocate were heard on 14.10.2020 when the learned counsel for respondents Nos.1 to 9 requested for adjournment as he could not prepare the case for arguments on the date fixed. On behalf of respondents Nos.1 to 9, written arguments were submitted on 21.10.2020 and requested for adjournment that their counsel would also assist the Court on the date fixed. On 06.11.2020, an application was submitted by respondent No.11 of the instant petition and petitioner No. 11 of the connected petition with the request that his name be deleted from the array of respondents with the submission that his partition application, pending adjudication before the revenue officer has been stayed due to pendency of these petitions. However, learned counsel for the respondents Nos.1 to 9 and 11 were not present due to strike being announced by Khyber Pakhtunkhwa Bar Council, and the matter was adjourned for today. When the case was called for hearing special attorney for petitioners namely Raza Muhammad, Special Attorney for respondents Nos.1 to 9 and respondent No.11 along with his son appeared. Representative for respondents Nos.1 to 9 stated that not only they have submitted the arguments but their learned counsel is also available to assist the Court. Arguments of the learned counsel for the respondents Nos.1 to 9 and respondent No.11 were heard and record perused.

4. The petitioners of the instant petition feel themselves aggrieved from the order dated 29.01.2015 of the learned Senior Member Board of Revenue/ Member-II of the Board of Revenue, by which, the application of respondents Nos.1 to 9 was turned down. The grievance of petitioners and cause of action for filing the instant petition can easily be gathered from para No. 12 of the petition which reads as:

"That petitioners being aggrieved partially from the order of SMBR dated 29.01.2015, filed this writ petition on the following amongst other grounds"

1. Record also reveals that petitioners had assailed the order of the learned Additional Commissioner, Mardan dated 09.10.2012, through their Revision Petition No.209/2012 and their revision petition was accepted on 18.03.2014 however, with the following observations:-

"Keeping in view the legal position, the revenue record and circumstances surrounding the case, the order of Additional Commissioner Mardan dated 09.10.2012 is set aside. The DDOR/AAC is allowed to continue with the partition proceedings. If any joint holdings/khatajat are brought before the Court by any of the joint owners its partition shall be undertaken as per law and procedure. In case there is any other partition application pending before the Court of DDOR/AAC it shall be disposed of expeditiously. There is no need of consolidating the share of each owner indifferent Mozajat, i.e. Akbar Abad and Fazal Abad unless all the parties by their written consent agree thereto. However, there is no harm in consolidating the shares of each party situated in the same Khata or adjacent Khatas in the same Mozah. Efforts shall be made to execute the partition decrees simultaneously in order to avoid bloodshed between the parties who admittedly belong to the same community and are close relatives. No order as to cost".

1. The grievance of the petitioners might be from deciding the execution petition simultaneously, pertaining to two different revenue estates namely Fazal Abad and Akbar Abad, however, it is astonishing that the order dated 18.03.2014 was not assailed specifically by the petitioners as the instant petition was filed on 28.12.2015 by mentioning and pointing out their grievance from order dated 29.01.2015 but amazingly the order challenged by the petitioners relates to the dismissal of review application filed by respondents Nos.1 to 9. The operative part of order impugned by the petitioners reads as:-

"After careful perusal of record of case and hearing both the counsel, this Court found no illegality, irregularity or miscarriage of justice in the order of my predecessor dated 18.03.2014. In the circumstances, I have no option but to dismiss the review petition in hand. Keeping in view the above factual position, review petition in hand is dismissed and the order of my predecessor dated 18.03.2014 is upheld".

1. It would be significant to mention that the order by which review application of respondents Nos.1 to 9 was dismissed has provided no cause of action to the petitioners, as they contested the review application and their prayer was acceded to. Moreover, it is also pertinent to mention that order dated 29.01.2015 was also assailed by respondents Nos.1 to 9 through connected Writ Petition No.1906-P/ 2015, by which, they have contended that the partition proceedings of both the revenue estates may be consolidated. Before discussing the legal and factual aspect of connected petition I would conclude that the instant petition bearing No.45-P/2016 being filed against the order dated 29.01.2015, is misconceived and without substance, however, when the special attorney for the petitioners was confronted with this legal aspect, he conceded at the bar that he had got no objection if the partition application of both the estates are consolidated and decided simultaneously.

2. Section 135 of the Land Revenue Act, 1967 deals with the partition of joint holding without any specification of any particular estate, which reads as:-

"135. Application for partition. Any joint owner of land may apply to a Revenue Officer for partition of his share in the land if:-

(a) at the date of application, the share is recorded under Chapter VI as belonging to him, or

(b) his right to the share has been established by a decree which is till subsisting at that date; or

(c) a written acknowledgment of that right has been executed by all persons interested in the admission or denial thereof".

1. It would not be uncommon that when the owners of the joint holding of different revenue estates intend to separate their respective shares and when in respect of all the estates the applications are pending adjudication then it would be far better in the interest of justice and for the parties too that all such applications be decided simultaneously and consolidation of all those applications would be more appropriate so that any dispute with respect to shares, possession, carving out of tatimma and potentiality of the property, keeping in view para 18.6 of Land Record Manual, be decided once for all. There would be no harm in consolidation of applications of different estates of the same sub-Division, especially when no one is disputing the same. The philosophy and logic for consolidation of partition application would be the settlement of all kinds of disputes pertaining not only to khewat ( ) but also to the survey numbers either of the same or of different holdings ( ).

2. Learned counsel for the petitioners has made reliance on 2013 CLC 148 and 2015 CLC 546. Insofar as the former is concerned, it was in respect of the title dispute, arising out of the decision of the civil Court, has got no relevancy with the matter in hand, however, the case reported in 2015 CLC 546 titled "Ibrar Ahmad v. Raheem Dad and 8 others" it was a decision made by a Board of Revenue of Punjab, wherein the dispute was in respect of a single joint holding with the exclusion of other in the same revenue estate. In the matter in hand, the dispute is altogether different as while applying for partition of agriculture property under section 135 of Land Revenue Act, the entire joint holding of the particular estate, amongst the owners must be included in the application otherwise it would be hit by the principle of partial partition. Insofar as, a group of persons having their joint properties in more than one revenue estate any one of them may apply for partition of his/their joint property of any revenue estate by not seeking the partition in the other, in such an eventuality the principle of partial partition would not be applicable, but when the partition applications of different revenue estates, amongst the same set of owners ( ) then the partition of their property should not only be finalized simultaneously but should also be proceeded in a consolidated proceedings for removal of ambiguities, settlement of disputes, in their common interest leading to a logical conclusion. There is no bar or clog in consolidation of partition applications of more than one estate. This view would be fortified with the principle laid down in the case law reported as PLD 1966 SC 708, PLD 1969 SC 65 wherein it was held:--

2021 Y L R 1954

[Peshawar]

Before Qaiser Rashid Khan, H.C.J. and Syed Muhammad Attique Shah, J

Mst. MOMINA---Petitioner

Versus

FAHAD SAJJAD and others---Respondents

Writ Petition No. 2143-P of 2018, decided on 16th February, 2021.

Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched. & 10---Suit for dissolution of marriage---Pre-trial proceedings--- Preliminary decree---Scope---Whenever an application is filed by plaintiff for dissolution of marriage upon failure of pre-trial reconciliation, the marriage is to be dissolved forthwith through a speaking and reasonable order---Dissolution cannot be withheld or refused merely upon pendency of other contesting issues between the parties qua recovery of payment of dower, maintenance or other ancillary matters, which could at best be adjudged after recording pro and contra evidence of the parties---Albiet, if the marriage tie is kept intact on account of other ancillary issues; then, it would be denial of the right so conferred upon the wife by the law, as the very purpose and object of S.10 of Family Courts Act, 1964, is to salvage the wife from hateful union and she should not be compelled in any circumstances to stay in the marriage contract against her will and consent; which would amount to keep the tie of marriage forcefully intact---Decree so passed shall be treated as a preliminary decree, which shall be merged into final decree after recording of pro and contra evidence of the parties.

Mst .Saima Irum and 3 others v. Tariq Javed and another 2006 MLD 83; Dr. Fakhr-ud-Din v. Mst. Kausar Takreem and another PLD 2009 Pesh. 92 and Mst. Yasmeen Bibi v. Muhammad Ghazanfar Khan and others PLD 2016 SC 613 rel.

Amir Javed for Petitioner.

Moeenuddin Ghauri for Respondents.

2021 Y L R 2033

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmed, JJ

MUHEEB ULLAH---Appellant

Versus

STATE through Additional Advocate General, K.P.K. and another--Respondents

Criminal Appeal No. 344-M of 2018, decided on 25th November, 2020.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Contradictions---Accused was charged for committing murder of his own brother by firing---Motive behind the occurrence was stated to be domestic quarrels---Admittedly, complainant was not an eye-witness of the occurrence as he had attracted to the spot after hearing the fire shots, however, daughter of the deceased claimed to have witnessed the accused firing at her father---Said eye-witness stated that she was carrying water in ewer for her father for the purpose of ablution and while going in front of him towards the washroom situated outside the main gate, the accused fired at her father and she identified him in the light of bulbs---Record showed that the deceased was a healthy man of 49/50 years of age---No evidence on the record to suggest that he was an infirm or ailing person and was depending on others in carrying out his routine activities including carrying of water to washroom for making ablution, thus, there was no logic in the prosecution version that the eye-witness was performing job for her father which he could easily accomplish without the help of his daughter---Even otherwise, the eye-witness was a young girl of 25/26 years at the time of occurrence---Washroom was situated outside of the main gate and a thoroughfare was also passing in front of the house of deceased---Stance of the eye-witness that despite of her fair sex and young age she was leading her father at mid night outside of her house for a pity job seemed ludicrous keeping in view the general temperament of the people of the society---Reason mentioned by the eye-witness regarding her presence near her father was not believable in circumstances---Investigating Officer had also failed either to take the ewer in possession through a recovery memo or assign any point to it in the site plan to prove the aforesaid version of the alleged eye-witness---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of reasonable doubt---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---Presence of eye-witness at the spot doubtful---Scope---Accused was charged for committing murder of his own brother by firing---Statement recorded by the eye-witness showed that she had woke up at 02:30 a.m. but exactly the same time had been shown as the time of occurrence in Murasila---Eye-witness admitted in her cross-examination that after washing her face and hands she had taken the sehri which would have obviously consumed some time then how it was possible for her to accompany her father at 02:30 a.m. for the purpose of taking water for him to washroom---No doubt, photographic narrations of the occurrence from a witness could not be expected more particularly when he/she recorded statement after two years of the occurrence, however, the events and time mentioned by the eye-witness in her statement did not coincide with the contents of Murasila vis-à-vis the time of occurrence, hence her presence on the spot with her father at the time of firing was doubtful, therefore, her statement could not be relied upon for maintaining conviction of the accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Night-time occurrence---Source of light---Scope---Accused was charged for committing murder of his own brother by firing---Time of occurrence was 02:30 a.m. at midnight and according to prosecution, the eye-witness had identified the accused in the light of electric bulbs installed in the surrounding but the Investigating Officer neither took any bulb from any place around the place of occurrence nor he assigned any point to a single bulb in the site plan to support the said claim of the eye-witness, thus, the prosecution had failed to prove the source of light on or near the place of occurrence to corroborate the assertion of the alleged eye-witness regarding identification of the accused in the pitch dark, therefore, her testimony to that effect, being suspect evidence, was also not believable---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Arshad v. The State PLD 1995 SC 475 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Identification of accused---Scope---Accused was charged for committing murder of his own brother by firing---No doubt, the eye-witness was closely related to the accused and there was possibility of his identification by the eye-witness through his voice, however, there was no evidence on the record to prove that prior to the occurrence the accused had either talked to the deceased nor with the eye-witness, therefore, her claim with regard to identification of the accused in the mentioned circumstances did not inspire confidence---Prosecution evidence mentioned that the deceased had enmities and disputes with other people in the area---Keeping in view the time as well as mode and manner of the occurrence, identification of the accused by the eye-witness was doubtful---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

Haroon Shafique v. The State and others 2018 SCMR 2118; Abdul Hayat v. The State 2011 MLD 886 and Muhammad Arif v. State and another 1999 PCr.LJ 707 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Circumstantial evidence--- Scope---Accused was charged for committing murder of his own brother by firing---No doubt, death of the deceased per medical evidence was the result of firearm injury on his head, however, the medical evidence by itself could not prove that the said firearm injury was caused to deceased by the present accused---Site plan showed that the eye-witness at Point falling between the deceased and accused---Accused had been shown near the southern wall of the washroom which was not visible from where eye-witness was present because of the intervening corner of the washroom between them---Investigating Officer had taken photographs of the place of occurrence but no photo was available on record to show all the points at the same time to confirm visibility of Point from assigned to the accused and eye-witness respectively in the site plan---Direction and locale of entry and exit wounds on the head of deceased were also not supported by site plan---Forensic Science Laboratory Report showed that the alleged crime weapon recovered on pointation of the accused was not matching with the two crime empties recovered from the spot---Different pieces of circumstantial evidence, being in conflict with each other, did not support the prosecution version---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Motive was not proved---Scope---Accused was charged for committing murder of his own brother by firing---Complainant had alleged the domestic quarrels as the motive behind the occurrence but prosecution had not produced any evidence in support of the said motive---No doubt, absence or weakness of motive by itself was not a proof of innocence of an accused, however, that shortcoming of the case in addition to other evidence of doubtful nature brought on the record was sufficient to create further suspicion in the story of prosecution---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

(g) Criminal trial---

----Absconsion---Scope---Conviction of an accused could not be based on his abscondence when otherwise the prosecution failed to prove its case through direct and circumstantial evidence of unimpeachable character.

Muhammad Sadiq v. The State 2017 SCMR 144 rel.

Shabbir Hussain Gigyani for appellant/convict. (Through Video Link).

Murad Akmal Mirkhel for the State.

Syed Abdul Haq for the Complainant.

2021 Y L R 2068

[Peshawar]

Before Musarrat Hilali and Muhammad Nasir Mahfooz, JJ

GHULAM MUHAMMAD---Petitioner

Versus

REGIONAL COMMISSIONER FOR FEDERAL OMBUDSMAN, PESHAWAR and 2 others---Respondents

Writ Petition No. 3253-P of 2018, decided on 5th April, 2021.

(a) Interpretation of statutes---

----Ambiguity, avoiding of---Principle---Each and every part of statute has to be given its meaning so that any ambiguity in any enactment must be avoided.

Sheikh Saeed Ahmed and another v. Abdul Wahid 1999 SCMR 1852 rel.

(b) Protection against Harassment of Women at the Workplace Act (IV of 2010)---

----S. 11---Women harassment---Employer, responsibility of---Petitioner was proceeded against on complaint of respondent for causing her harassment---As a result of proceedings before Federal Ombudsman / ombudsperson, major penalty of compulsory retirement was imposed upon petitioner employee---Validity---Competent authority was not bereft of the powers to initiate any proceedings against petitioner---Ombudsman / ombudsperson and its office had conducted proceedings by recording some evidence in the matter---Such evidence could be treated in lawful exercise of powers but penalty of compulsory retirement against petitioner could not be imposed---High Court set aside imposition of major penalty to petitioner and remanded the matter to Organization (employer) to treat the same as regular inquiry under Efficiency and Discipline Rules, regulating terms and conditions of service---Constitutional petition was allowed accordingly.

Federation of Pakistan through Establishment Division v. Brig. (Rtd.) Zulfiqar Ahmad Khan and others 2007 SCMR 1313; Peshawar Electric Supply Company Ltd. v. Wafaqi Mohtasib (Ombudsman) Islamabad and others PLD 2016 SC 940 and Sheikh Saeed Ahmed and another v. Abdul Wahid 1999 SCMR 1852 rel.

Danial Khan Chamkani for Petitioner.

Nauroz Khan for Respondents.

2021 Y L R 2153

[Peshawar (Bannu Bench)]

Before Sahibzada Asadullah, J

MISAL KHAN and another---Appellants

Versus

AMJAD KHAN and another---Respondents

Criminal Appeal No. 174-B of 2019, decided on 13th February, 2020.

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

----Ss. 324, 334 & 34---Attempt to commit qatl-i-amd, itlaf-i-udw, common intention---Appreciation of evidence---Benefit of doubt---Motive was not proved---Scope---Prosecution case was that the accused made firing upon the complainant, as a result of which, he was hit and fell down---Motive for the offence was stated to be a dispute over construction of path---Record showed that the Investigating Officer neither collected documentary evidence nor recorded the statement of any one from the locality in that respect and when so, the motive went unproved---Appeal against conviction was allowed, in circumstances.

Hakim Ali v. The State 1971 SCMR 432; Amin Ullah v. The State PLD 1976 SC 629; 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 rel.

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

----Ss. 324, 334 & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Attempt to commit qatl-i-amd, itlaf-i-udw, common intention---Appreciation of evidence--- Benefit of doubt---Withholding material evidence---Scope---Prosecution case was that the accused made firing upon the complainant, as a result of which, he was hit and fell down---Presence of the eye-witness was not established from record, as the complainant at the time of report was fully conscious but he did not mention the name of his brother to have witnessed the occurrence, neither the eye-witness had shown his presence in the hospital---If the eye-witness was present at the time of report, he would have verified the same---Record showed that soon after receiving injury the complainant was rushed to the hospital by the co-villagers---In case, the eye-witness was present on the spot, he would have definitely rushed his brother to the hospital to save his life---Complainant had stated that his brother had witnessed the occurrence but when he was questioned that why he did not mention the same in his report and even to the Investigating Officer, his reply was that as he was not asked for the same---As to who witnessed the occurrence, it had nowhere been the practice that the Police Officials were to ask and then the complainant was to mention---Such part of the statement of the complainant was an improvement, which could rightly been taken as dishonest, with the sole purpose to strengthen the prosecution case---Prosecution did not produce the eye-witness during trial, he was simply abandoned being unnecessary---Prosecution was yet to explain that being the most important witness why was he abandoned and it was yet to explain that the site-plan was prepared at the instance of the eye-witness---When the witness on whose pointation site plan was prepared was not examined such site plan would have no value---Non-production of eyewitness had created dents in the prosecution case and had questioned the integrity of the complainant---Admittedly, both the complainant and eye-witness were brothers inter-se, when a brother did not support the case of his brother, it would tell otherwise---If the best available evidence was withheld, it reacted upon the case of the prosecution and a negative inference would be drawn---Logic behind Art. 129(g) of the Qanun-e-Shahadat, 1984, was to cater for the like situation---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court.

Tahir Khan v. The State 2011 SCMR 646 rel.

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

----Ss. 324, 334 & 34--Attempt to commit qatl-i-amd, itlaf-i-udw, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon and crime empties---Delay in sending the weapon and crime empties for analysis---Scope---Prosecution case was that the accused made firing upon the complainant, as a result of which, he was hit and fell down---Accused was arrested from his house on the day of occurrence and a Kalashnikov was recovered from his possession which was dispatched to the Forensic Science Laboratory along with the recovered empties for opinion---Forensic Science Laboratory examined the weapon and empties and opined that 4 out of 25 empties wedded with the weapon, but the prosecution could not reap its benefits simply that it had got a positive report in its favour rather the court was to see that when, where and how the empties and the weapon was recovered----Accused was arrested on 12.10.2017 and the Kalashnikov was recovered from his possession, but surprisingly the empties and weapon were received by the Forensic Science Laboratory after one month of its recovery---Prosecution was not absolved of the liability rather its liability to dislodge the impression began to prove that the weapon and empties were lying in safe custody and were dispatched to the Forensic Science Laboratory after observing all the legal formalities---Record was silent as to where the incriminating articles were lying in the intervening period and no witness was produced in that respect---Moharrar of the Police Station was not produced and so was the Police Official who took the empties and weapon to the Laboratory, so much so no extract from Register No. 19 was collected and placed on record--No independent witness had been associated with the process of raid and recovery---Recovery was effected in utter disregard of S.103, Cr.P.C.---Evidentiary value of the Forensic Science Laboratory Report had lost its efficacy and it could not be taken into consideration and as such could not be relied upon to convict the accused---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court.

Hayat Ullah v. The State 2018 SCMR 2092 rel.

Syed Fakhr-uddin Shah for Appellants.

Qudratullah Khan Gandapur, Asstt: A.G. for the State.

Muhammad Rashid Khan Dirma Khel for Respondents.

2021 Y L R 2185

[Peshawar (Abbottabad Bench)]

Before Ahmad Ali, J

GUL BAZ---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail C. A. No. 262-A of 2020, decided on 20th April, 2020.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302, 311, 148 & 149---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, rioting, armed with deadly weapon---Bail, cancellation of---Perusal of bail granting order showed that the Trial Court while allowing bail to the accused had considered his plea of alibi---Application through which accused had raised his plea of alibi was sent to the department for inquiry and report---Investigating Officer of the case had not confirmed his plea of alibi---Accused was directly charged for murder by making indiscriminate firing---Occurrence was witnessed by the eye-witnesses and the medical reports of the deceased had supported the prosecution version---No delay was observed in lodging the FIR and it was yet to be established whether the place of occurrence was easily accessible---Accused was directly charged for an offence punishable with death or imprisonment for life and fell within the prohibited limb of S.497, Cr.P.C. and in such like cases grant of bail on the grounds which were yet to be established during trial was uncalled for---Order of the Trial Court on the face of it was perverse and discretion exercised in allowing bail was arbitrary, therefore, the bail granting order was not sustainable in the eyes of law---Petition for cancellation of bail was allowed, in circumstances and bail granting order passed by Trial Court was set aside.

Mst. Jewan Mai v. The State PLD 2015 SC 242 and Abdul Ghaffar v. Sakhi Sultan and 3 others 1987 SCMR 1556 ref.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Mst. Noor Habib v. Saleem Raza and others 2009 SCMR 786 and Ghulam Qammber Shah v. Mukhtiar Hussain PLD 2015 SC 66 rel.

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

----S. 497---Bail---Scope---Court, while considering bail application, only has to see whether there are reasonable grounds to believe that the accused has committed the offence punishable with death or imprisonment for life---Court is not required to conduct a preliminary inquiry/trial but has to make only tentative assessment.

Abdul Saboor Khan for Petitioner.

Sardar Muhammad Asif, A.A.G. for the State.

Shad Muhammad Khan for the Complainant.

2021 Y L R 2194

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

MUDASAR SHAH and another---Appellants

Versus

The STATE through A.A.G. and another---Respondents

Criminal Appeals Nos. 27-M, 46-M and Criminal Revision No. 12-M of 2018, decided on 10th December, 2020.

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

----Ss. 302(b), 324, 34, 109 & 212---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, abetment, harbouring offender---Appreciation of evidence---Benefit of doubt---Un-natural conduct of complainant---Scope---Accused were charged for committing murder of sister of the complainant and also injuring his brother---Deceased had earlier been engaged with absconding co-accused whose engagement had later on ended, which fact was disclosed as motive for commission of the offence---Record revealed that prosecution had mainly been relying upon testimony of the sole eye-witness, who had also been complainant in the case---Complainant strangely had left behind his injured brother as well as his deceased sister and had rushed to the house where he had also taken his cousins with him and chased the accused---During the long chase of two hours and forty minutes, he had almost forgotten his brother and sister which he had left on the spot---Nobody else from the house had come out and taken the injured to the hospital or lodged report of the occurrence with promptitude, which was need of the hour---Had complainant been present in the company of his sister and fired at by two of the accused simultaneously, his escape in such a situation might be deemed requiring an explanation, for which purpose the assertion of running towards graveyard might have been added to the story---Said display of unnatural conduct by the sole eye-witness created substantial doubt about presence of the complainant and witnessing the occurrence---Circumstances established that the prosecution had not been able to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Pathan v. The State 2015 SCMR 315 and Mst. Salamat Bibi v. The State 1986 P Cr.LJ 111 rel.

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

----Ss. 302(b), 324, 34, 109 & 212---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, abetment, harbouring offender---Appreciation of evidence--- Benefit of doubt---Improvements in the statement of complainant--- Scope--- Accused were charged for committing murder of sister of the complainant and also injuring his brother---Record showed that the complainant had improved his statement---In his examination-in-chief, complainant stated that he had run to the graveyard for taking shelter, while on the other hand he had stated in his first report of the occurrence that he had escaped the firing miraculously---Such an improvement might have been felt necessary by him, for the reason that his role had not been fitting in the story of prosecution---Circumstances established that the prosecution had not been able to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324, 34, 109 & 212---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, abetment, harbouring offender---Appreciation of evidence---Benefit of doubt---Weapon of offence recovered on the pointation of the accused---Reliance---Scope---Accused were charged for committing murder of sister of the complainant and also injuring his brother---Record showed that a pistol was recovered on the pointation of accused, however, it was important to be noted that said pistol had been shown lying beneath a stone at a place near an irrigation channel---Said recovery was shown to have been witnessed by the witnesses mentioned there, among whom Police Inspector had been produced in court, who stated in his cross-examination that marginal witnesses to the recovery memo were relatives of the complainant-party---Even otherwise, when the prosecution had failed to prove the case against the accused beyond reasonable doubt then the corroboratory evidence produced in the case could be of no help to the prosecution---Circumstances established that the prosecution had not been able to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Imran Ashraf and 7 others v. The State 2001 SCMR 424 and 2007 SCMR 1427 rel.

Hazrat Rehman and Hus-ul-Maab for Appellant (in Criminal Appeal No.27-M of 2018).

Raza-ud-Din Khan, A.A.G. for the State (in Criminal Appeal No.27-M of 2018).

Abdul Halim Khan for Respondents (in Criminal Appeal No.27-M of 2018).

Abdul Halim Khan for Appellant (in Criminal Appeal No.46-M of 2018).

Raza-ud-Din Khan, A.A.G. for the State (in Criminal Appeal No.46-M of 2018).

Hafiz Ashfaq Ahmad and Hus-ul-Maab for Respondents (in Criminal Appeal No.46-M of 2018).

Abdul Halim Khan for Petitioner (in Criminal Revision No.12-M of 2018).

Raza-ud-Din Khan, A.A.G. for the State (in Criminal Revision No.12-M of 2018).

Hazrat Rehman Ahmad and Hus-ul-Maab for Respondents (in Criminal Revision No.12-M of 2018).

2021 Y L R 2224

[Peshawar (Abbottabad Bench)]

Before Ahmad Ali, J

UMAIR SHOUKAT---Petitioner

Versus

STATE and another---Respondents

Criminal Miscellaneous B. A. No. 398-A of 2020, decided on 18th May, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 164-B & 497---Penal Code (XLV of 1860), S. 377---Khyber Pakhtunkhwa Child Protection and Welfare Act (XIII of 2010), S. 53---Sodomy and sexual abuse---Bail, grant of---DNA test, non-conducting of---Confessional statement---Completion of investigation---Accused was juvenile offender who was arrested for committing sodomy---Prosecution relied upon confessional statement of accused alleged to have been made during investigation--- Validity--- No compliance with S.164-B, Cr.P.C. was made as no samples for DNA test were obtained either from accused or victim---Word 'shall' was used in S.164-B, Cr.P.C. making its applicability mandatory---Prosecution was to keep in mind such aspect in the best interest of accused as well as the victim---Investigation was complete and accused was no more required to prosecution for such purpose, therefore, his further incarceration in jail would serve no useful purpose---Confessional statement was not recorded in the manner as ordained by Supreme Court and veracity of the same would be seen by Trial Court after recording of evidence of prosecution---Bail was allowed in circumstances.

Kashmir Khan v. The State (Criminal Petition No.302 of 2020); 2004 YLR 2879; Hashim Qasim's case 2017 SCMR 986; 2018 PCr.LJ 1465 and Haji Muhammad Nazir v. State 2008 SCMR 807 rel.

Masood Azhar for Petitioner.

Sardar Muhammad Asif, A.A.G. for the State.

2021 Y L R 2233

[Peshawar]

Before Ahmad Ali, J

MUJTABA HASSAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous Bail Application No. 3688-P of 2019, decided on 6th January, 2020.

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

----S. 497---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Bail, grant of---Unseen occurrence---Further inquiry---Scope---Accused was behind the bars on the charge of murder of the son of complainant---Incident was unseen and initially nobody was charged for the commission of offence---Complainant had recorded his statement under S.164, Cr.P.C., naming the accused after a considerable delay of 13 days and without disclosing his source of information---No direct evidence was available to prima facie connect the accused with the commission of offence---Evidence in the shape of Call Data Record (CDR) regarding presence of accused in village, without corroborative evidence, was a weak type of evidence and refusal of bail by Trial Court on such a ground was unjustified especially when it was not mentioned in the FIR or statement under S.164, Cr.P.C. that the deceased was last seen in the company of accused---Nothing was recovered from the accused nor had he made any confessional statement, therefore, the case against accused was required to be established through pro and contra evidence---Bail was allowed, in circumstances.

2015 YLR 1952; 2017 SCMR 61 and 2014 SCMR 12 ref.

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

----S. 497---Bail---Statement of facts---Scope---Facts of the case need not to be mentioned at bail stage.

Muhammad Shakeel v. The State PLD 2014 SC 458 ref.

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

----S. 497---Bail---Further inquiry---Scope---Where case of accused required further probe to establish his involvement in the commission of offence through reliable evidence as provided under subsection (2) of S. 497, Cr.P.C. then grant of bail was a rule and its refusal an exception.

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

----S. 497---Bail---Principle---Bail does not mean acquittal of accused but only change of custody from Government Agencies to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever required to be produced.

Haji Muhammad Nazir v. State 2008 SCMR 807 ref.

Dr. Amir Ajum Khattak, for Petitioner.

Barrister Babar Shahzad Imran, A.A.G. for the State.

Aman Khan Bangash for the Complainant.

2021 Y L R 2273

[Peshawar]

Before Rooh-ul-Amin Khan and Ijaz Anwar, JJ

ZIA ULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 489-P of 2020, decided on 27th January, 2021.

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

----S. 9(c)---Possession of Narcotics---Appreciation of evidence---Prosecution case was that two plastic sacks, one containing 11 packets of heroin, each packet weighing 1025 grams and another sack containing 16 packets of heroin, each weighing 1535 grams were recovered from secret cavities of oil tanker driven by accused, while co-accused was sitting thereon---Four witnesses were produced and examined in support of the prosecution case---Seizing Officer and recovery witness had been subjected to taxing cross-examination, but nothing beneficial to defence could be extracted from them rather they remained stuck to their stance and corroborated each other on all material aspects of the occurrence such as the day, date, time and place of arrest of the accused and recovery of contraband from the Oil Tanker in the mode and manner as alleged in the FIR---Positive Forensic Science Laboratory Report qua the samples further supplemented the prosecution case---Prosecution had also proved the chain of circumstances under which the samples were sent to the Forensic Science Laboratory right from the spot till its receipt in the Forensic Science Laboratory---Defence failed to point out any discrepancy in the testimony of the witnesses---Incriminating statements of the prosecution witnesses recorded on oath were enough to prove recovery of huge quantity of heroin from secret cavity of the Oil Tanker which was in exclusive possession and control of accused---Shred of evidence had not been brought by the defence to show any enmity of the witnesses with the accused---Circumstances established that the prosecution had succeeded in proving its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances---Prosecution witnesses had admitted in their statements that nothing incriminating was recovered from personal possession of co-accused and that he was sitting in front seat of the vehicle---No evidence had been brought on record by the prosecution to establish that co-accused was in conscious knowledge of the concealed narcotics in Oil Tanker or that he was dealing in the business of narcotics---Nothing in black & white was available on file to show previous involvement or conviction of co-accused in such like cases---Co-accused was acquitted, in circumstances.

Fayaz Anwar for Appellant.

Umar Farooq, A.A.G. for the State.

2021 Y L R 2294

[Peshawar]

Before Lal Jan Khattak and Muhammad Naeem Anwar, JJ

KHYAL WAZIR MUHAMMAD---Appellant

Versus

ABDUL JABIR and 2 others---Respondents

Criminal Appeal No. 791-P of 2019, decided on 1st September, 2020.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of wife of complainant and another person by firing---Perusal of the record revealed that the accused, no doubt, had been charged by the complainant in his first report but when complainant appeared before the court as witness, he entirely deviated from the story as narrated by him in his report---Complainant was declared hostile and, accordingly, he was cross-examined by the prosecution---Complainant, stated in cross-examination, that he did not know as to who made fire because at the time of firing he was sleeping---Complainant further stated that his wife was done to death inside the room while the male deceased in the door of the room---Said witness admitted that he had signed the white blank paper inside the ambulance and his identity card etc. was taken from him in the presence of a Councillor---Witness stated that he did not know as to what the local police had written in the report---During cross-examination, nothing was extracted from the mouth of complainant to connect the accused with commission of offence---Since the statement of the complainant was not worthy of credence, therefore, no reliance could be placed on his testimony, particularly, in a case entailing capital punishment---Circumstances established that the Trial Court had attended to the relevant evidence on record on its true perspective and its findings found support from the material available on the file, therefore, the acquittal recorded by the Trial Court was maintained and the appeal, being without any substance was dismissed, in circumstances.

Muhammad Sadiq v. Muhammad Sarwar and others 1979 SCMR 214 rel.

(b) Criminal trial---

----Witness--- Hostile witness--- Scope---Statement of hostile witness could not be discarded in toto and had to be considered like the evidence of any other witness, but with caution.

Zahid Khan v. Gul Sher and another 1972 SCMR 597 and Muhammad Sadiq v. Muhammad Sarwar 1979 SCMR 214 rel.

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

----S. 164---Confessional statement---Retraction---Scope---Retracted judicial confession might be treated sufficient to sustain a conviction, if found voluntary and true, but as a rule of prudence, the same should not be acted upon unless corroborated by some other reliable evidence.

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

----S.164---Judicial confession---Scope---For acceptance of judicial confession, two essentials were the sine qua none, which must be fulfilled---Firstly, the confession was made voluntarily and was based on true account of facts leading to the crime---Secondly, confession was proved at the trial.

2017 SCMR 986 rel.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Recovery of weapon and crime empties---Scope---Accused were charged for committing murder of wife of complainant and another person by firing---Record showed that three crime empties allegedly recovered from the spot were sent to Forensic Science Laboratory for report, according to which the recovered empties were fired from 30-bore pistol recovered from accused---Said report was of no avail to the prosecution as the complainant had stated in his cross-examination that the site plan was not prepared at his instance---Circumstances established that the trial court had attended to the relevant evidence on record on its true perspective and its findings found support from the material available on the file, therefore, the acquittal recorded by the trial court was maintained and the appeal against acquittal, being without any substance, was dismissed, in circumstances.

(f) Criminal trial---

----Site plan, preparation of---Scope---Site plan would lose its evidentiary value if not prepared on the pointation of witnesses.

2001 SCMR 424 rel.

(g) Criminal trial---

----Expert opinion---Scope---Opinion of the expert had a corroborative value only and was useful for ascertaining whether the direct evidence was true or not.

Noor Muhammad v. The State 2010 SCMR 97 rel.

(h) Criminal trial---

----Medical evidence--- Scope--- Post-mortem report of the deceased confirmed the ocular evidence with regards to receipt of injuries, nature of the injuries, kinds of weapon used in the commission of offence but it would not connect the accused with the commission of offence.

Sajjan Solangi v. The State 2019 SCMR 872 rel.

(i) Criminal trial---

----Evidence--- Scope--- Criminal case was to be decided on the basis of evidence adduced by the prosecution---Suspicion, however grave or strong could never be a proper substitute for the standard of proof required in a criminal case, i.e. beyond reasonable doubt.

Muhammad Pervaiz v. The State and others PLD 2019 SC 592 rel.

(j) Criminal trial---

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

(k) Appeal against acquittal---

----Double presumption of innocence---Interference---Acquittal carried double presumption of innocence---Judgment of acquittal could not be set aside unless same was perverse, ridiculous, artificial and resulting into miscarriage of justice.

2014 SCMR 479; 2019 SCMR 1045 and 2019 SCMR 1315 rel.

Syed Abdul Fayaz for Appellant.

Umar Farooq, A.A.G. for the State.

Shabbir Hussain Gigyani for Respondents.

2021 Y L R 2358

[Peshawar]

Before Qaiser Rashid Khan, C.J. and Ijaz Anwar, J

AFZAL KHALIQ---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman, and 2 others---Respondents

Writ Petition No. 784-P of 2021, decided on 10th June, 2021.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a) & 9(b)---Constitution of Pakistan, Art.199---Constitutional petition---Bail, grant of---Delay in conclusion of trial---Long list of prosecution witnesses---Accused was arrested on 13-7-2014 and trial did not conclude---Validity---Accused was in continuous detention since his arrest and had been facing trial since Reference was filed against him way back in July, 2014---Over a period of 7 years, only 174 prosecution witnesses were examined out of 513 witnesses mentioned in calendar of witnesses---By such count it would take a few more years, thus, early conclusion of trial was not in sight in the foreseeable future---Accused could not be kept in jail for an indefinite period---Accused was entitled to concession of bail only on the ground of statutory delay in conclusion of trial---Bail was allowed in circumstances.

Sardar Abdur Rauf Khan for Petitioner.

Muhammad Riaz Mohmand, A.D.P.G. for Respondents.

2021 Y L R 2378

[Peshawar]

Before Musarrat Hilali and Syed Arshad Ali, JJ

Syed ASHFAQ ANWAR---Petitioner

Versus

SECRETARY, HOUSING PESHAWAR and 4 others---Respondents

Writ Petition No. 4336-P of 2020, decided on 13th April, 2021.

Khyber Pakhtunkhwa Housing Authority Act (XI of 2005)---

----S.10---Allotment of flats/appartments---Eligibility---Promissory estopple, principle of---Applicability---Petitioners had been serving in Khyber Pakhtunkhwa government for more than five years and had applied for allotment of flats/ apartments--- Authorities declared petitioners ineligible for allotment on the ground that the scheme was only for retired employees--- Validity--- Initial advertisement, soliciting applications of government servants for sale/purchase of apartments, envisaged that an employee of Federal Government working in Basic Pay Scale-17 and above, who had worked with the affairs of Province of Khyber Pakhtunkhwa for 5 years, was eligible for allotment of apartment---To hold public servants responsible for their words, Court had always resorted to well enshrined principles of legitimate expectation and promissory estopple---Letter/order in question holding petitioners ineligible for apartments/flats was passed by a person who had no jurisdiction in the matter albeit based on alien considerations---High Court set aside letter/order declaring petitioners as ineligible for allotment of apartments/ flats as illegal and without lawful authority---High Court directed the authorities to place cases of petitioners before Special Committee established under S.10 of Khyber Pakhtunkhwa Housing Authority Act, 2005, for appropriate decision---Constitutional petition was allowed accordingly.

Iqbal Hussain v. Province of Sindh 2008 SCMR 105; American International School System v. Mian Muhammad Ramzan and others 2015 SCMR 1449; Mustafa Impex's case PLD 2016 SC 808; Peer Imran Sajid's case 2015 SCMR 1257; Aziz-ud-Din's case PLD 1970 SC 439; Al-Samraiz's case 1986 SCMR 1917; Aneesa Rehman 1994 SCMR 2232 and Hazara (Hill Tract) Improvement Trust v. Qaisara Elahi 2005 SCMR 678 ref.

S. M. Ilyas for Petitioner.

Sabah-ud-Din and Aamir Javed for Respondents.

2021 Y L R 2432

[Peshawar]

Before Muhammad Naeem Anwar, J

Mst. MARIA AZIZ---Petitioner

Versus

MUHAMMAD NAWAZ and 2 others---Respondents

Review Petitions Nos. 151 of 2020 in W.P. 7435-P of 2019, No.152-P/2020 in W.P. No.7436-P of 2019, No.153-P of 2020 in W.P. No.7437-P of 2019, No.154-P of 2020 in W.P. No.7438-P of 2019, No.155-P of 2020 in W.P. No.7439-P of 2019, No.156-P of 2020 in W.P. No.7440-P of 2019 and No.157-P of 2020 in W.P. No.7441-P of 2019, decided on 12th July, 2021.

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

----S. 114 & O.XLVII, R.1---Khyber Pakhtunkhwa Urban Rent Restriction Ordinance (VI of 1959), S. 13(2)(vi)---Review---Scope---Eviction of tenant---Personal bona fide need---Reconstruction of demised property---Land lady failed to produce certificate of sanction of reconstruction even at the proceedings before the High Court; her eviction petition was rejected by Rent Controller which judgment was maintained up to the High Court---Petitioner/landlady sought review of order, passed in constitutional petitions, by virtue of which High Court had maintained the concurrent findings of both the Courts below rejecting her eviction petition on her failure to produce certificate of sanction (approved site plan) from concerned Authority for reconstruction of demised property---Held, that at the time of hearing constitutional petitions under review, neither the approved site plan was available on record nor the petitioner could produce the same even at the time of arguments, as such the same was not the fact which was available at that time but with due diligence had not been found out; that was why the petitioner, after realizing (after disposing off constitutional petition under review), had obtained the certificate by TMA regarding the alleged sanction for reconstruction allegedly granted to her six years ago (at the time of filing eviction petition)---Document (certificate of approval), for the first time, was place on record, as such the same could not be considered to have been placed on file in accordance with law, especially when the respondents had not been given an opportunity to go through it and when no witness the concerned office was produced, no findings to the credibility of certificate pertaining to the sanction allegedly granted to the petitioner could be rendered at this stage---No prejudice would have been caused by filing of sanctions subsequently but before closing of case---Neither the petitioner had produced any such sanction granted to her before the Rent Controller nor before the Appellate Court, so much so that during the course of arguments before the High Court in constitutional petitions under review, she was unable to produce the same even before the pronouncement of order, in order to determine as to whether the same was valid, genuine or otherwise---Petitioner had not been able to point out any apparent error which was floating on the surface of record or any ground or a fact which was available on record but neither it was agitated nor considered by the Court for the purpose of review of the judgment in accordance with S.114 read with O. XLVII, R. 1 of C.P.C---Petitioner, through orders under review, was at liberty to submit fresh ejectment applications after having obtained requisite approval from concerned authority and the Rent Controller shall decide said applications within a period of three months---Review petition was dismissed, in circumstances.

Haji Bahadar Khan v. Habib Ahmad and others 2021 CLC 114; Haji Muhammad Botta and others v. Member (Revenue) BOR and others PLD 2010 SC 1049; Mian Rafiq Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1997 SC 865; Muhammad Akbar Khan and another v. Dr. Muhammad Rafique and others 1980 SCMR 483 and Barkat Ali v. Muhammad Ehsan and another 2000 SCMR 556 ref.

Qamar Din v. Mst. Taleh Begum 1980 SCMR 608 distinguished.

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

----Art. 162---Civil Procedure Code (V of 1908), S. 114 & O.XLVII, R.1---Review petition, filing of---Limitation---Held, that the review petitions, in the present case, were filed with a delay of nineteen (19) days, even giving relaxation in accordance with S.12(2) of the Limitation Act, 1908 petitioner had not been able to explain the same with plausible reason---Petitioner, for condonation of delay, was required to explain each day with proper justification, whereas she had not been able to place sufficient material for the said purpose, as such the review petitions were barred by time---Review petitions were dismissed, in circumstances.

Sheikh Muhammad Saleem's case PLD 2003 SC 628 ref.

PLD 2005 SC 315 distinguished.

Nasir Khan Khalil and Qazi Jawad Ehsanullah for Petitioner.

Muhammad Ihsanullah Khan, for Respondents.

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2021 Y L R 283

[Balochistan]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

DEPUTY COMMISSIONER (REVENUE)/COLLECTOR, QUETTA and another---Appellants

Versus

Begum JAMILA DAUD and 15 others---Respondents

Regular First Appeal No. 75 of 2012, decided on 3rd January, 2020.

Land Acquisition Act (I of 1894)--

----Ss. 18 & 23---Reference to court---Enhancement of compensation---Market value---Determination of---Procedure---Acquired land was situated at main road having best location---Collector Land Acquisition had failed to determine fair compensation and award was based on the average price for a period of one year---Validity---Criteria of one year average could not be made basis for assessment of compensation amount of acquired land---Land had been acquired for the interest of general public at public expense---Landlord was to be compensated in the light of criteria of a willing vendor and that of a needy vendee---Compensation assessed by the Collector Land Acquisition was on the lower side and was not based on actual market rate---Collector Land Acquisition while passing award had not considered the location of the land which had been acquired and had awarded meager amount of compensation---Compensation awarded by the Referee Court was neither exaggerated nor exorbitant---Impugned judgment and decree passed by the Court below was in accordance with law---Appeal was dismissed, in circumstances.

Land Acquisition Collector and others v. Mst. Iqbal Begum and others PLD 2010 SC 719 rel.

Zahoor Ahmed Baloch, Assistant Advocate General for Appellants.

Rafiullah Barrech for Respondents Nos. 1 to 15.

2021 Y L R 347

[Balochistan (Sibi Bench)]

Before Abdul Hameed Baloch, J

KHAMISA and 2 others---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.(s) 27 of 2020, decided on 29th February, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 109, 147, 148 & 149---Qatl-i-amd, abetment, rioting, unlawful assembly---Bail, refusal of---Accused persons were duly nominated in the FIR---Alleged crime weapons were recovered on the pointation of co-accused---Disclosure before the police was not admissible in evidence but where the same followed the discovery of new facts same was admissible under Art. 40 of the Qanun-e-Shahadat, 1984---Court was required to take decision on the basis of material available on the record---Deeper appreciation of evidence was not permissible at bail stage---Tentative assessment of the evidence, prima-facie, connected the co-accused in the commission of alleged offence---Allegation against the accused was general in nature---Mere nomination in the FIR did not make a ground for refusal of the bail---No specific role had been attributed to him---Mere disclosure of co-accused was not a ground for refusal of bail--- No recovery of crime weapon of co-accused was effected from accused--- Bail application to the extent to the accused was allowed, however to the extent co-accused persons the same was dismissed, in circumstances.

Ali Hassan Bugti for Applicants.

Jameel Akhtar Gajwani, A.P.G. for the State.

2021 Y L R 423

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Nazeer Ahmed Langove, JJ

MUHAMMAD SALEEM---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 8 of 2019, decided on 27th December, 2019.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular account supported by medical evidence---Accused was charged for committing the murder of brother of the complainant---Record showed that the complainant narrated the facts by assigning vital role to the accused of inflicting injury to the deceased with scissor---Background of the incident was a dispute on sewerage water---Eye-witnesses, who apprehended the accused along with crime weapon i.e. scissor fully supported the version of complainant, coupled with medical opinion by Medical Officer---Accused, in his statement recorded under S.164, Cr.P.C., admitted the incident, but according to him it was not intentional---Circumstances established that act of accused, in the present case, fell in the third category of S.300, P.P.C.---Accused had the knowledge that inflicting injury with scissor on highly sensitive and vital part of deceased, in all probabilities, his act would cause death of deceased, appeal was dismissed accordingly.

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

----S. 302(b)--- Qatl-i-amd--- Scope---Injury in case of qatl-i-amd need not be caused with the intention to cause death---If somebody inflicted injury with intention to cause such bodily injury which in ordinary course of nature was likely to cause death or with knowledge that his act was so eminently dangerous that it must result in death, it would be qatl-i-amd--- Injuries caused on vital parts of the body, such as head, neck and pericardial region might have resulted in causing death---Intention or knowledge was to be gathered from the object by which the injuries were caused.

Ms. Asiya Naz Malik for Appellant.

Tayyaba Altaf and Noor Jahan Kahoor, Addl. P.G. assisted by Wajahat Khan Ghaznavi for the State.

2021 Y L R 457

[Balochistan]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

NASAR UD DIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 386 of 2019, decided on 31st December, 2019.

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

----Ss. 9(c) & 36---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.5 & 6---Possession of narcotics---Report of Government Analysts---Failure of Analysts to mention full protocols of tests applied---Effect---Prosecution case was that on spy information, police intercepted the vehicle of accused and recovered sixty seven packets of charas, weighing eighty kilograms from its secret cavities---First Information Report as well as the memorandum of recovery showed that a consolidated sample of 670 grams had been separated from the 67 packets taken into possession---No separate samples had been secured and tested vis-a-vis the substance, contained in each packet---Consolidated sample of 670 grams of recovered substance was then tested positively by the Chemical Examiner---Samples had to be secured from every bag or packet of narcotic substance recovered in a case and each such sample was to be separately tested by the Chemical Examiner---Report of Forensic Science Laboratory did not purport the necessary protocol, as such could not be termed to be conclusive proof that the recovered substance was charas---Prosecution had failed to establish the safe custody of the recovered substance during trial, while not producing mohorrir of the Levies Station---Even safe transmission of the samples of the recovered substance from the local Levies Station to the office of the Chemical Examiner had not been proved by the prosecution---Prosecution case was that the narcotic substance in the present case recovered from secret cavities of the vehicle, which was allegedly driven by the accused, as such, it was incumbent upon the prosecution to establish the presence of such cavities, but no such evidence worth its name had been brought on record in that respect---Recovery witness had admitted the absence of secret cavities in the body of vehicle during the course of cross-examination---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Ameer Zeb v. State PLD 2012 SC 380 and State through Regional Director ANF v. Imam Bakhsh 2018 SCMR 2039 rel.

Khalil Ahmed Panezai, Muhammad Asif Khilji and Dost Muhammad Kakar for Appellant.

Barrister Amir Muhammad Lehri: Amicus Curie.

Habibullah Gul, Additional Prosecutor General for the State assisted by Syed Abdul Jabbar and Syed Abdullah, DSPs/Chemical Experts, FSL, Balochistan.

2021 Y L R 503

[Balochistan (Sibi Bench)]

Before Abdul Hameed Baloch, J

FAQIR MUHAMMAD and 3 others---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.(s) 19 of 2020, decided on 29th February, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497--- Penal Code (XLV of 1860), Ss. 336, 337-A (ii), 337-F (i), 354, 147 & 149---Itlaf-i-salahiyyat-i-udw, shajjaah, ghayr-jaifah, assault or criminal force to woman with intent to outrage her modesty, rioting, unlawful assembly---Bail, grant of---Further inquiry---Medico-Legal Certificate showed that no organ or limb was destroyed or permanently un-paired---Question as to which provision of law was applicable to the case of accused was yet to be determined---Mere heinousness of crime was no ground to withhold bail---Court could not keep a person in jail on allegation that he had committed offence which fell within the purview of prohibitory clause of S.497, Cr.P.C---Accused persons were admitted to bail.

Shabbir Ahmed Sherazi for Applicants.

Jameel Akhtar, Additional Prosecutor General for Respondent.

2020 Y L R 560

[Balochistan]

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

ABDUL WADOOD and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 163, 164 and Murder Reference No. 7 of 2019, decided on 18th March, 2020.

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

----S. 161---Statement of witness---Unexplained delay---Effect---Delay of even one or two days without explanation, in recording statements of witnesses is fatal for prosecution case and such statements were not worthy of reliance.

Muhammad Asif v. The State 2017 SCMR 486; 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 and Muhammad Khan v. Maula Bakhshah 1998 SCMR 570 rel.

(b) Criminal trial---

----Evidence---Corroborative evidence---Scope---Where direct evidence fails, the corroborative piece of evidence is of no avail.

Ghulam Akbar and another v. The State 2008 SCMR 1064 rel.

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

----Ss. 302(b), 147, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-Amd, rioting armed with deadly weapons---Appreciation of evidence---Benefit of doubt--- Defective investigation---Injured prosecution witness, evidence of---Scope---Accused persons were alleged to have made indiscriminate firing, set ablaze 6-7 vehicles and shops resultantly one person was murdered and others were injured---Prosecution failed to establish that the vehicles and shops belonged to complainant party and Investigation officer also did not inquire about from any independent witness despite the fact that alleged occurrence had taken place at a thickly populated area---Neither statements of owners of vehicles nor of shops which were set on fire were recorded by investigation officer---Crime empties were not sent to Forensic Science Laboratory and it could not be determined as to how many accused persons made firing---Investigation was not conducted diligently and investigation officer failed to associate any independent person from the locality other than the relatives and tribesmen of the complainant to dig out the truth---Witnesses of ocular account though had a stamp of injuries on their persons yet they failed to prove their truthfulness during trial---Complainant took sufficient time in lodging crime report after going through the reports of postmortem examination as well as medico-legal reports of injured witnesses and also after consultation and deliberation---Dead body and injured witnesses were examined prior to registration of FIR---Prosecution had managed eye-witnesses as well as prosecution story---Prosecution failed to prove charge against accused persons beyond shadow of doubt and benefit of doubt favoured accused persons---High Court set aside conviction and sentence awarded by Trial Court and both the accused persons were acquitted of the charge---Appeal was allowed in circum-stances.

Muhammad Khan and another v. The State 1999 SCMR 1220; Bashir Ahmed v. The State 2019 SCMR 1417; Munir Ahmed v. The State 2019 SCMR 2006; Allahyar v. The State 1990 SCMR 1134; Mahmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Imran Hussain v. Amir Arshad and 2 others 1997 SCMR 438; Muhammad Rafique v. The State 2014 SCMR 1698 and Altaf Hussain v. The State 2019 SCMR 274 ref.

Shahidullah v. Eid Marjan and 2 others 2014 PCr.LJ 1684 and Amin Ali and another v. The State 2011 SCMR 323 rel.

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

----S. 161---Police Rules 1934, R.25.2 (3)---Recording of statements of witnesses---Mode---Investigation officer is not supposed to record statements of prosecution witnesses while acting as 'stenographer' rather he is obliged, as required under S.161, Cr.P.C., to 'examine' the person whose evidence / statement he is going to record.

(e) Criminal trial---

----Abscondence--- Relevance--- Scope---Abscondence of accused is a relevant fact and can be used as corroborative piece of evidence but such fact cannot be read in isolation, as the same had to be read along with substantive piece of evidence.

Asad Ullah v. Muhammad Ali PLD 1971 SC 541; Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373; Muhammad Sadiq v. Najeeb Ali 1995 SCMR 1632; Muhammad Khan v. The State 1999 SCMR 1220; Gul Khan v. State 1999 SCMR 3004; Muhammad Arshad v. Qasim Ali 1992 SCMR 814; Pir Badshah v. State 1985 SCMR 2070 and Amir Gul v. State 1981 SCMR 182 rel.

(f) Criminal trial---

----Court, duty of---Scope---Mere heinous or gruesome nature of crime should not detract Court of law in any manner from the due course to judge and make appraisal of evidence in a laid down manner and to extend benefit of reasonable doubt to accused person being indefeasible and inalienable right of an accused.

(g) Criminal trial---

----Benefit of doubt---Principle---Even a single circumstance creating reasonable doubt is sufficient for acquittal of accused.

Sahibzada v. The State and 2 others 2015 PCr.LJ 554 rel.

Syed Ayaz Zahoor and Abdul Wali Khan Nasar for Appellants.

Muhammad Ali Rakhshani for the Complainant.

Abdul Latif Kakar, A.P.G. for the State.

2021 Y L R 611

[Balochistan]

Before Muhammad Hashim Khan Kakar and Muhammad Ejaz Swati, JJ

WAZIR MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 30 of 2019, decided on 20th March, 2020.

(a) Criminal trial---

----Witness---Hearsay---Witness who did not see the occurrence and had raised fingers towards accused on the basis of information conveyed to them by a third person, such witness had merely deposed about crime without reference to real culprit.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Unnatural death of wife---Husband failed to explain---Wife of accused was murdered in house and accused could not explain her death---Unnatural death of deceased inside the house of accused and his failure to discharge such onus, was intriguing---Such failure could not be equated to qualify as evidentiary certainty, essentially required in order to saddle accused with formidable corporal consequences after discarding remaining pieces of evidence relied upon by prosecution---Accused could not be convicted for alleged murder simply on the basis of supposition---Prosecution failed to prove charge against accused persons beyond reasonable doubt---High Court extended benefit of doubt to the accused husband, set aside conviction and sentence awarded by Trial Court and acquitted him of the charge---Appeal was allowed, in circumstances.

(c) Criminal trial---

----Abscondance--- Scope--- Mere absconsion of accused is not sufficient to sustain conviction---People avoid facing the process of law or their adversaries for a variety of reasons, not essentially inclusive of guilt.

Nasrullah alias Nasro v. State 2017 SCMR 724 and Asad Khan v. State PLD 2017 SC 681 rel.

Barrister Zahoor Hassan for Appellant.

Muhammad Yahya Baloch, A.P.G. for the State.

2021 Y L R 690

[Balochistan]

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

MUHAMMAD SULTAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 46 of 2020, decided on 5th May, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Transportation of narcotics---Bail, refusal of---Second bail application---Fresh grounds, non-availability of---Effect---Accused was apprehended while transporting 4000 grams of charas---High Court had already rejected the bail application of accused on merits---Instant application was filed by the accused after 1 month and 20 days of the rejection of his earlier bail application---No fresh ground was available to the accused to file the instant application---Petition was dismissed, in circumstances.

State v. Zubair and 4 others PLD 1986 SC 173 rel.

Khalil Ahmed Panezai for Applicant.

Yahya Baloch, A.P.G. for the State.

2021 Y L R 743

[Balochistan]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

TAUK ALI---Petitioner

Versus

The ADDITIONAL DISTRICT JUDGE-VI, QUETTA and 3 others---Respondents

Constitution Petitions Nos. 329 and 330 of 2016, decided on 29th October, 2019.

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

----Ss. 25, 7 & 19(b)---Custody of minor---Guardian not to be appointed by the Court of a minor whose father is living---Father, living abroad---Scope---Petitioner (father of minor) and respondent (maternal grandmother of minor) both sought custody of minor---Petitioner sought custody of minor on the grounds that the mother of minor was murdered by unknown assailants; that he (father), among others, was nominated in the FIR; that he himself had handed over the custody of minor to the respondent for some days, however she later on refused to hand over the custody; that she was an aged woman and that she had no source of income---Trial Court dismissed both the petitions whereas appellate court accepted the appeal of respondent and dismissed that of petitioner---Validity---Petitioner and stepmother of minor were nominated in the FIR for murder of minor's mother---Petitioner was a businessman who remained outside the country for his business and in such situation minor would have to live with the stepmother who was an absconder in murder case of her real mother---Petitioner could not prove that the environment of respondent's house was not conducive to upbringing of the minor---Order passed by appellate court in respect of appointment of respondent as guardian of minor in view of S.19(b) of Guardians and Wards Act, 1890 was set aside---Judgment and decree passed by Trial Court was upheld---Petitions were dismissed.

Syed Ayaz Zahoor and Muhammad Ali Kanrani for Petitioner.

Ahsan Rafiq Rana for Respondent No.3.

2021 Y L R 795

[Balochistan]

Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ

QUETTA DEVELOPMENT AUTHORITY through Director General, Q.D.A.---Petitioner

Versus

SAJJAD KHAN and 10 others---Respondents

Regular First Appeal No. 77 of 1998, decided on 16th October, 2019.

Land Acquisition Act (I of 1894)--

----S. 28-A---Suit for recovery of compensation and compulsory acquisition charges--- Principles--- Plaintiffs/ respondents filed suit for recovery of compensation and 15% Compulsory Acquisition Charges---Trial Court decreed the suit in favour of plaintiffs/ respondents--- Validity--- Plaintiffs/ respondents were entitled for 15% additional compensation under S.28-A of Land Acquisition Act, 1894, till payment of compensation was made---Outstanding compensation was paid on 15-2-2001 whereas award was passed on 29-3-1993---Plaintiffs/respondents were entitled for 15% Compulsory Acquisition Charges from 29-3-1993 to 15-2-2001 on outstanding amount---High Court modified judgment and decree passed by Trial Court accordingly---Appeal was dismissed in circumstances.

Shai Haq Baloch, A.A.G. along with Miss Rubina Shaheen for Appellant.

Hadi Shakeel Ahmed for Respondents.

2021 Y L R 848

[Balochistan]

Before Rozi Khan Barrech, J

DIRECTOR GENERAL CIVIL AVIATION AUTHORITY through Airport Manager, Quetta---Petitioner

Versus

MUHAMMAD DAWOOD---Respondent

Civil Revision No. 240 of 2014, decided on 27th December, 2019.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S. 96---Limitation Act (IX of 1908), S. 5---Suit for declaration, permanent injunction and recovery of damages--- Appeal--- Limitation---Condonation of delay---Contention of plaintiff was that defendant had violated terms and conditions of contract---Defendant adjusted security amount deposited by the plaintiff against outstanding amount due against the plaintiff---Suit was dismissed concurrently---Validity---Defendant had neither given any particular of outstanding amount in his written statement nor given any break-up about the said outstanding---No documentary evidence had been produced by the defendant to the extent of his claim of outstanding amount---Reason given in the application for condonation of delay that time was spent in obtaining sanction for filing of appeal was not supported by any document---Said reason was not sufficient within the meaning of S.5 of Limitation Act, 1908---Trial Court passed impugned judgment and decree on 28.05.2012 and defendant applied for certified copy on 10-07-2012 which was provided on 31-08-2012---Appeal filed by the defendant before the Appellate Court was barred by time---Defendant had failed to point out any illegality or irregularity in the impugned judgments and decrees passed by the Courts below---Revision was dismissed, in circumstances.

Shams-ud-Din Achakzai for Petitioner.

Barrister Muhammad Anwar Nasar and Muhammad Din Kakar for Respondent.

2021 Y L R 913

[Balochistan]

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

ABDUL WAHID and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 230, Criminal Acquittal Appeal No. 237 and Criminal Revision No. 24 of 2019, decided on 30th April, 2020.

(a) Criminal trial---

----Witness---Related witness---Statement of related witness---Reliance---Scope---Evidence of a related witness could not be discarded on the ground of his being related to the victim---If it was found that the testimony of a related witness got no corroboration from attending circumstances of the case or his conduct shown at the time of occurrence or just thereafter was such which could not be expected by a prudent person, in such circumstance the evidence furnished by a related witness could easily be discarded.

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

----Ss. 302(b), 324, 109, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Ocular and medical evidence---Contradictions--- Scope--- Prosecution case was that the accused party made firing upon the complainant party, which resulted into instantaneous death of deceased on the spot and caused injuries to other members of the complainant party---Ocular account of the incident had been furnished by four witnesses including complainant and injured persons---Complainant in his report and the eye-witnesses in their statements attributed a specific role of firing to accused---Injured witness attributed specific role to absconding accused persons of firing and causing injuries to him---Other injured witness attributed specific role of firing to absconding accused and causing injuries to him on his right leg---Another injured witness attributed role of firing to absconding accused persons and for causing injuries to him---According to prosecution witnesses, the accused persons were fourteen in number who made firing upon them---If indiscriminate firing was being made by fourteen persons with automatic rifles, no one could distinguish their role with exactitude as to whose shot hit whom---Medical evidence showed that all the injured witnesses sustained injuries on their backside but surprisingly, all the injured witnesses had attributed the accused with specific role of firing upon the deceased---Three eye-witnesses attributed role of firing to absconding accused and causing injuries to them---In such view of the facts when firing was being made by the accused persons how could it be possible that the complainant as well as the injured prosecution witnesses identified the accused persons and attributed individual role to each of them that too when they were not facing the accused persons---Said aspect of the matter created doubt in a prudent mind with regard to the mode and manner in which the occurrence took place---Injuries on the persons of the above witnesses were also doubtful---Neither complainant stated about the injuries allegedly received by him in his statement before the court as well as in his report nor he stated a single word about injuries of injured witnesses---Injured witness did not state a word about the injuries of complainant and other injured witnesses---Similarly, other injured witness did not state about injuries of the complainant and other prosecution witnesses---Prosecution story as put forth before the Trial Court was hardly believable, in circumstances---Record showed that all the accused were related to each other and were of the same clan---High Court observed that present case was best example of spreading the net wide and implicating maximum male members of the opponent family in order to deter them from pursuing their case---Circumstances established that the conviction passed by the Trial Court against the accused was against all canons of law recognized for the safe dispensation of criminal justice---Appeal against conviction was allowed, in circum-stances.

Bashir Ahmed v. The State 2019 SCMR 1417 and Munir Ahmed v. The State 2019 SCMR 2006 rel.

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

----Ss. 302(b), 324, 109, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Delay of about six hours and forty minutes in lodging the FIR---Effect---Prosecution case was that the accused party made firing upon the complainant party, which resulted into instantaneous death of deceased on the spot and injuries to other members of the complainant party---Record transpired that the injured witnesses and deceased were examined by Medical Officer before lodging the FIR---Medical Officer stated that on 06.05.2018 at 12:45 p.m., dead body of the deceased was examined and on the same date the injured witnesses were also examined at 12:40, 12:50, 1:00 and 1:10 p.m. respectively---Occurrence took place on 06.05.2018 at 10:30 a.m. but the matter was reported same day at 5:10 p.m.---Fact remained that the place of occurrence was at a distance of 41 kilometres from Levies Thana---High Court observed that FIR was lodged with delay of six hours and forty minutes, after deliberation and consultation for the reason that the prosecution waited for the medical reports and after obtaining same the prosecution witnesses attributed role to each accused---Said fact created serious doubt in the prosecution story that why the report was not lodged promptly---Appeal against convction was allowed, in circumstances.

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

----S. 154---Delay in lodging the FIR---Effect---Delay in lodging the report cannot be simply brushed aside, as it assumed great significance---Delay 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 who ultimately the prosecution might wish to nominate.

Allahyar v. The State 1990 SCMR 1134; Mahmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Imran Hussain v. Amir Arshad and 2 others 1997 SCMR 438; 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), 324, 109, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Contradictions in the statement of witnesses---Effect---Prosecution case was that the accused party made firing upon the complainant party, which resulted into instantaneous death of deceased on the spot and injuries to other members of the complainant party---Investigating Officer/Tehsildar had stated that the statements of the injured persons were recorded under S.161, Cr.P.C. before 08.05.2018, however, said witness did not clarify the exact date of recording the statements of injured witnesses---On the other hand, two injured witnesses stated during cross-examination that neither Investigating Officer/Tehsildar met them nor their statements were recorded by him---Other witness stated during cross-examination that he remained in civil hospital for one day but he did not meet Tehsildar/ Investigating Officer Levies or any other Levies Officials at Civil Hospital---Said facts rendered the case of the prosecution doubtful---Appeal against conviction was allowed, in circumstances.

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

----S. 161---Delay in recording the statement of witnesses by police---Scope---Delay of even one or two days without explanation, in recording the statements of witnesses, was fatal for the prosecution and not worthy of reliance.

Muhammad Asif v. The State 2017 SCMR 486; 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 and Muhammad Khan v. Maula Bakhshah 1998 SCMR 570 rel.

(g) Criminal trial---

----Witness---Statement of injured witness---Scope---Injuries on the person of a witness might establish his presence at the relevant time at a particular place of occurrence but the injury itself was not the proof that whatever the witness was telling was the truth.

Shahidullah v. Eid Marjan and 2 others 2014 PCr.LJ 1684 and Amin Ali and another v. The State 2011 SCMR 323 rel.

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

----Ss. 302(b), 324, 109, 147, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Withholding material evidence---Scope---Prosecution case was that the accused party made firing upon the complainant party, which resulted into instantaneous death of deceased on the spot and injuries to other members of the complainant party---In the present case, the injured and deceased were shifted to hospital by two persons but none of the said persons were produced by the prosecution nor their statements were recorded under S.161, Cr.P.C.---If a piece of evidence was available with a party and the said party failed to produce the same before the court then presumption under Art. 129(g) of Qanun-e-Shahadat, 1984 could be drawn that had the said evidence been produced before the court it would have been unfavourable to the said party---Such presumption could fairly be drawn in the present case that had said two been produced before the court, they would not have supported the prosecution case---Non-examination of such material witnesses had materially affected the prosecution case---Appeal against conviction was allowed, in circumstances.

Lal Khan v. The State 2006 SCMR 1846 rel.

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

----Ss. 302(b), 324, 109, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Recovery of crime empties---Reliance---Scope---Prosecution case was that the accused party made firing upon the complainant party, which resulted into instant death of deceased on the spot and caused injuries to other members of the complainant party---Record showed that crime empties were recovered from the place of occurrence but same were not sent to Forensic Science Laboratory, which made the same doubtful and same could not be relied upon for purpose of conviction---Said evidence was a corroborative one and in a case where direct evidence failed, corroborative piece of evidence was of no avail---Appeal against conviction was allowed, in circumstances.

Ghulam Akbar and another v. The State 2008 SCMR 1064 rel.

(j) Criminal trial---

----Witness---Improvement by witness---Effect---If a witness, made, dishonest improvement in his statement to strengthen the prosecution case, such portion of his statement was to be discarded.

Amir Zaman v. Mahboob and others 1985 SCMR 685 rel.

Najmuddin Mengal and Attaullah Langov for Appellant (in Criminal Appeal No.230 of 2019).

Qazi Najeeb-ur-Rehman for the Complainant (in Criminal Appeal No.230 of 2019).

Qazi Najeeb-ur-Rehman for Appellant/Complainant (in Criminal Acquittal Appeal No.237 of 2019).

Ashiq Ali Jatoi for Respondents (in Criminal Acquittal Appeal No.237 of 2019).

Qazi Najeeb-ur-Rehman for Petitioner (in Criminal Revision Petition No.24 of 2019).

Najmuddin Mengal and Attaullah Langove for Respondents (in Criminal Revision Petition No.24 of 2019).

Abdul Latif Kabar, A.P.G. for the State (in Criminal Revision Petition No.24 of 2019).

2021 Y L R 969

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Abdul Hameed Baloch, JJ

MUHAMMAD NAEEM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.52, Criminal Revision Petition No.37 and Criminal Acquittal Appeal No. 315 of 2018, decided on 30th April, 2020.

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

----S. 395---Qanun-e-Shahadat (10 of 1984), Art. 40---Dacoity---Appreciation of evidence---Disclosure of accused---Scope---Prosecution case was that the accused and co-accused, six in number, entered into the house of complainant and looted five crore rupees cash, jewellery amounting to fifty/sixty lakhs---Record showed that the custody of accused was taken who was already in custody of another case---During investigation, the accused made disclosure and on his pointation, the Investigating Officer got recovered an amount of Rs. 28,50,000/-, one 9-MM pistol with live cartridges, one gold ring---Vehicle and commando uniform was also taken into possession from the house of the accused---Accused had given details of dacoity, his companions, purchase of body building articles, purchase of vehicle and same were recovered on his pointation---Record showed that the complainant, prima facie, had no motive to falsely involve the accused---Evidence tendered by prosecution qualified the term confidence inspiring to the extent of accused---Hence in absence of any possibility of false involvement such evidence was rightly believed by the Trial Court---Circumstances established that the conviction so recorded by the Trial Court was proper and well reasoned---Appeal against conviction was dismissed, in circumstances.

Qadan alias Qadir Bux v. The State PLD 2015 Sindh 426 and Nazir Shehzad v. The State 2009 SCMR 1440 rel.

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

----Art. 22---Identification parade---Scope---Identification parade was to establish identification of culprit and to pin point the role of accused in commission of offence.

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

----S. 395---Qanun-e-Shahadat (10 of 1984), Art. 22--- Dacoity---Appreciation of evidence---Benefit of doubt--- Identification parade--- Scope---Prosecution case was that the accused and co-accused, six in number, entered into the house of complainant and looted five crore rupees cash, jewellery amounting to fifty/sixty lakhs---Record transpired that the custody of accused was taken by the police on 23.06.2017, then the identification parade was conducted---Delay of identification per se was not itself sufficient to discard the testimony---Identification parade was not substantive piece of evidence---Identification parade could only corroborate the statement of the witness---Circumstances established that the conviction so recorded by the trial court was proper and well reasoned---Appeal against conviction was dismissed, in circumstances.

Muhammad Akram v The State 2015 SCMR 877 rel.

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

----Art. 40---Disclosure of accused before police---Admissibility---If recovery was affected on the disclosure and pointation of accused, such information would be admissible in evidence.

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

----S. 395---Dacoity---Appreciation of evidence---Delay of about more than twenty days in lodging the FIR---Effect---Prosecution case was that the accused and co-accused, six in number entered into the house of complainant and looted five crore rupees cash, jewellery amounting to fifty/sixty lakhs---Record showed that the complainant submitted application for the registration of FIR on 11.04.2017---Station House Officer concerned instead of registering FIR started inquiry under S. 157(2), Cr.P.C. and finally on 01.05.2017 recommended for FIR---Complainant by submitting application, fulfilled the responsibility on his part---Mere delay in lodging FIR was not sufficient to believe or disbelieve the contents of FIR---Guilt or innocence would require evidence---Concept of FIR was to set criminal law into motion---Appeal against conviction was dismissed, in circumstances.

Imdad Hussain alias Imtiaz v. The State 2018 YLR 2184 rel.

(f) Criminal trial---

----Admission of accused against other accused---Scope---Admission of accused could not be based for conviction of other accused.

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

----S. 417---Appeal against acquittal---Presumption--- Acquittal carried double presumption of innocence infavour of accused and warranted no interference unless the same was arbitrary, capricious, fanciful or against the record.

Haji Paio Khan v. Sher Biaz 2009 SCMR 803 rel.

Muhammad Ali Kanrani and Asmatullah Mandokhail for Appellant.

Muhammad Younas Mengal, Additional Prosecutor General, Iqbal Ahmed Kasi and Muhammad Zakir Khan Kakar for the Complainant.

2021 Y L R 1109

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

Mir DOST alias KIRARO and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.(s) 73 and Murder Reference No.(s) 2 of 2019, decided on 23rd December, 2019.\

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S. 345---Qatl-i-amd, common intention---Appreciation of evidence---Compounding of offence---Scope---Accused were charged for committing murder of five persons of the complainant party---Record showed that the medical certificates of the deceased lady was available on record, according to which she was also seven months pregnant---Accused had committed qatl-i-amd of the deceased lady out of ghairat---Murder in the name of family honour and religion could not be sanctified---In cases where the Qatl-i-amd had been committed on the pretext of "Karo Kari", "Siah Kari" and similar other customs, the provisions of S.345(2), Cr.P.C., did not allow the compounding of offence---Court might refuse to give an effect to such a deal, especially coupled with the scenario when the offence was gruesome, brutal, cruel, appalling, odious, gross and repulsive which caused terror and sensation in the society---Present case was the one in which the entire family had been killed while asleep, for no apparent cause but to avenge the refusal of marriage and grapple the property thus, the case fell within the category (abovesaid), therefore, the leave for the compromise was refused and the application was dismissed, in circumstances.

Naseem Akhtar and another v. The State PLD 2010 SC 938 rel.

Adnan Ejaz Sheikh for Appellants.

Jameel Akhtar Gajani, A.P.G. for the State.

2021 Y L R 1184

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Abdul Hameed Baloch, JJ

IZZATULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 273 and Murder Reference No. 13 of 2019, decided on 8th July, 2020.

(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---Sentence, reduction in---Ocular account was corroborated by medical evidence---Prosecution case was that the accused party while armed with deadly weapons made firing upon the complainant party, due to which the son, wife of complainant and his neighbour died---Record showed that on the day of incident, three persons were injured and succumbed to injuries---Complainant and eye-witnesses stated that the bullet fired by absconding accused hit wife of complainant---Deceased son of complainant was hit by other absconding accused, whereas his neighbour was hit by the accused---Eye-witnesses in their deposition neither made any improvements nor there appeared any glaring contradictions---Admittedly, the complainant and ocular witnesses were related to each other---Testimony of eye-witnesses could not be discarded on the said ground---Not the relationship but the intrinsic value of the evidence was to be considered---Presence of eye-witnesses at the spot and their credibility could not be shattered by the defence---Defence had failed to bring on record any ill-will of prosecution witnesses with the accused---Defence had not disputed the unnatural death of deceased---Death certificates issued by Medical Officer confirmed that the deceased died due to fire arm injuries---Medical evidence confirmed the ocular account with regard to seat of injuries, kind of weapon used in the occurrence---Ocular account furnished by the prosecution was trustworthy and reliable---Defence had failed to point out any reason that the witnesses charged the accused falsely and substituted him with actual culprit---Defence failed to point out any material contradictions, omissions and improvements---High Court observed that record transpired that the real cause of occurrence had not been disclosed by either side, in such state of affairs, it would be appropriate to modify the sentence under S.302(b), P.P.C. from death to that of imprisonment for life---Appeal was partly allowed and the death sentence awarded to the accused under S.302(b), P.P.C. on account of murder of deceased neighbour of complainant was modified to that of life imprisonment.

Ijaz Ahmed v. The State 2009 SCMR 99; Muhammad Iqbal v. The State PLD 2001 SC 222 and Mukhtar Alam v. Fazal Nawab 2020 SCMR 618 rel.

(b) Criminal trial---

----Witness--- Testimony of related witness---Reliance---Scope---If statement of related witness was truthful, conviction could be awarded on such statements.

(c) Criminal trial---

----Witness--- Statement of solitary witness---Scope---Conviction could be based on sole statement of such witness, if found reliable.

(d) Criminal trial---

----Recovery of crime weapon---Scope---Recovery of crime weapon is not manda-tory requirement of law but is a corrobo-rative piece of evidence.

Ashfaq Asghar v. The State 2013 YLR 2620 rel.

(e) Criminal trial---

----Site plan---Presence of witnesses not mentioned in the site plan---Effect---Omission to indicate position of eye-witnesses in the site plan could not lead to inference of such witnesses being not present---Site plan is not substantive piece of evidence, therefore, mere omission to mention the position of eye-witnesses in the site map is not fatal to the prosecution case.

Sardar Khan v. The State 1998 SCMR 1823 rel.

(f) Criminal trial---

----Witness---Minor contradictions in statement---Scope---Minor contradictions in the statement of a witness are to be overlooked.

Ranjha v. The State 2007 SCMR 455 rel.

Khalid Ahmed Kubdani and Fatima Nazar for Appellant.

Muhammad Younas Mengal, Additional Prosecutor General and Muhammad Khalid Kakar for the Complainant.

2021 Y L R 1291

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

TAYYAB RAZA---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 47 and Murder Reference No. 6 of 2018, decided on 19th October, 2020.

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

----Ss. 375, 376, 377, 294 & 506---Sexual offences, rape, sodomy, obscene acts and songs, criminal intimidation---Appreciation of evidence---Sentence, reduction in---Accused was charged for sexually abusing the daughter of complainant and taking snaps and recording videos---In the present case, statements of prosecution witnesses established the fact that the accused had been sexually assaulting the minor girls of the Mohallah---All the witnesses had brought on record that soon after getting information, the accused was arrested and after watching the snaps and videos they were shocked that the accused was sexually assaulting the minor girls---Confession of accused was recorded before Judicial Magistrate---Court statements of witnesses were fully in line with the confessional statements under S.164, Cr.P.C. as well as their statements recorded by the Investigating Officer under S.161, Cr.P.C.---Defence had failed to point out any minor contradiction or dishonest improvement in all the statements of witnesses---Even otherwise, a minor child could be defamed for whole life, no father or elder brother would involve an innocent person in the false case---No suggestion was put forth to the effect that the complainant or the victim had any animosity or ill will against the accused---Defence had failed to bring on record any ill-will or ulterior motives on the part of witnesses for false implication of the accused---Record showed that though number of victims were named, who were sexually assaulted, but the prosecution had failed to produce all the victims---One major victim was not produced by the prosecution, though her Court statement was available on record---Victims had also kept mum till the arrest of the accused, thus, in such circumstances, awarding of capital punishment to the accused was unwarranted---Sentence of death of accused was, therefore, converted into imprisonment for life---Appeal against conviction was dismissed with said modification in sentence, in circumstances.

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

----Ss. 375, 376, 377, 294 & 506---Sexual offences, rape, sodomy, obscene acts and songs, criminal intimidation---Appreciation of evidence---Sentence, reduction in---Statements of victims---Scope---Accused was charged for sexually abusing the daughter of complainant and taking snaps and recording videos---Prosecution case had been strengthened by the statements of two minor victims---Statements of both the said victims were fully corroborating each other on all material counts---Despite lengthy cross-examination, the defence had failed to give dent or damage to their testimonies---Undisputedly, the victims of the offence were minors less than the age of 10-years and a school going girls, who did not carry any ill will, grudge or malice against the accused to falsely implicate him in the case---Evidence of both the victims had been fully corroborated by the medical evidence as well as the other circumstantial evidence including the expert report, who carried out the analysis of photos and videos---Testimony of the victim could not be impeached or discredited though subjected to test of cross-examination by the defence---Record showed that though number of victims were named, who were sexually assaulted, but the prosecution had failed to produce all the victims---One major victim was not produced by the prosecution though her Court statement was also available on record---Victims had also kept mum till the arrest of the accused---Awarding of capital punishment to the accused was unwarranted, in circumstances---Sentence of death of accused was, therefore, converted into imprisonment for life---Appeal was dismissed with said modification in sentence, in circumstances.

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

----S. 376---Rape---Sole statement of victim---Scope---In case of sodomy or zina the solitary statement of victim would be sufficient to convict the accused if it was confidence-inspiring.

Fayyaz alias Fayyazi and another v. The State 2006 SCMR 1042 rel.

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

----Ss. 375, 376, 377, 294 & 506---Sexual offences, rape, sodomy, obscene acts and songs, criminal intimidation---Appreciation of evidence---Sentence, reduction in---Medical evidence---Scope---Accused was charged for sexually abusing the daughter of complainant and taking snaps and recording videos---Record showed that the case of prosecution had also been strengthened from the medical evidence produced through Lady Police Surgeon---Perusal of Medico-Legal Certificates had established the fact that the hymens of victims were not intact and that the sexual act was performed with them---Investigating Officer also produced the accused before Medical Officer, who after examination issued Medico-Legal Certificate, perusal of which also established the fact that the accused was potent and was able to perform the act of sexual intercourse---Record showed that though number of victims were named, who were sexually assaulted, but the prosecution had failed to produce all the victims---A major victim was not produced by the prosecution, though her Court statement was available on record---Victims had also kept mum till the arrest of the accused---Awarding of capital punishment to the accused was unwarranted, in circumstances---Sentence of death was therefore, converted into imprisonment for life, in circumstances---Appeal was dismissed with said modification in sentence.

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

----Ss. 375, 376, 377, 294 & 506---Sexual offences, rape, sodomy, obscene acts and songs, criminal intimidation---Appreciation of evidence---Sentence, reduction in---Recovery of incriminating material---Scope---Accused was charged for sexually abusing the daughter of complainant and taking snaps and recording videos---Case of prosecution had also got strength from the recoveries of smart phone, computer C.P.U. and USB---Raid was conducted in the house of accused and during the course thereof smart phone was recovered from personal possession of accused, while the search of his house was resulted into recovery of computer C.P.U. and USB---Said articles were also produced in the Trial Court and on the request of prosecution the memory card already recovered from the possession of accused as well as his smart phone, USB and computer were played, perusal of which transpired that the accused had taken hundreds of porn snaps and a number of videos where accused had been sexually abusing the minors by unnatural offence, fingering in virginal part and other such obnoxious acts---Prosecution in order to establish the porn snaps and videos recorded in the above articles sent the same for analysis and accordingly a witness produced the Digital Forensic Examination Report---Said report further strengthened the case of prosecution that the pornography was genuine, as the same was forensically examined, no frame insertion, editing, forgery, deletion was identified---Not only the memory card contained porn snaps and videos of minor girls but the computer, USB and mobile phone of the accused also contained such abusive porn snaps and videos of minor girls---Record showed that though number of victims were named, who were sexually assaulted, but the prosecution had failed to produce all the victims---One major victim was not produced by the prosecution, though her Court statement was available on record---Victims had kept mum till the arrest of the accused---Awarding of capital punishment to the accused was unwarranted, in circumstances---Sentence of death was therefore, converted into imprisonment for life, in circumstances---Appeal was dismissed with said modification in sentence.

Rafiullah Barech for Appellant.

Abdul Mateen, D.P.G. for the State.

Ms. Farzana Khilji for the Complainant.

2021 Y L R 1368

[Balochistan]

Before Abdul Hameed Baloch, J

ASMATULLAH and another---Petitioners

Versus

The STATE---Respondent

Criminal Revision No. 18 of 2020, decided on 17th March, 2020.

Criminal Procedure Code (V of 1898)---

----S. 540---Power to summon material witness or record---Scope---Petitioner moved application under S. 540, Cr.P.C. for calling Medical Certificate of deceased and for calling an eye-witness as court witness---Trial Court had dismissed the said application---Validity---Section 540, Cr.P.C. empowered the court to summon any person or examine any person or re-call, re-examine any person at any stage of inquiry, trial or proceeding---Said provision of law did not provide any time period, stage of proceeding for summoning/recalling any witness---Concept of S.540, Cr.P.C was to empower the court to do complete justice---Court could not summarily dismiss the application of the parties under S.540, Cr.P.C. holding that the application had been filed at belated stage or to fill up the lacuna---Court had to find out whether examination of the referred witnesses was essential for just decision of the case or not---Mere delay was no ground for rejection of the application---Application was filed by the petitioner for calling the record of deceased from hospital---Said fact was also admitted by Medical Officer that he examined the deceased---Prosecution did not bother to collect Medical Certificate of deceased from hospital where he died---For just decision of the case it was necessary that the medical report of deceased should be brought on record---Section 540, Cr.P.C. empowered the court to summon any person without application from either side if his testimony was essential for just conclusion of the case---Petitioners prayed for calling the Medical Report of deceased and calling injured as court witnesses---Petition was accepted by setting aside the impugned order, in circumstances.

The State v. Muhammad Yaqoob 2001 SCMR 308 ref.

Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95 and State v. Muhammad Yaqoob 2001 SCMR 308 rel.

Ahsan Rafiq Rana and Abdullah Kakar for Petitioner.

Wajahat Khan Ghaznavi, State Counsel.

Abdul Zahir Kakar for the Complainant.

2021 Y L R 1410

[Balochistan]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

MUHAMMAD SHAFIQ---Appellant

Versus

The STATE---Respondent Criminal Appeal No. 77 and Murder Reference No. 4 of 2019, decided on 3rd January, 2020.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular and medical evidence--- Corroboration--- Sentence, reduction in---Accused was charged for committing murder of the brother of complainant by firing---Record showed that in the crime report, complainant had specifically nominated the accused for making firing upon deceased---First Information Report was lodged promptly---Name of son of deceased as witness was mentioned in the report, that at the time of occurrence he was with the deceased---Said witness further added that the accused had run away towards road and in the meanwhile a witness also arrived and took the deceased to hospital in a vehicle---Said witness narrated the whole story with regard to the occurrence and had correctly stated the date, time, place and manner in which the occurrence had taken place---Another witness was an eye-witness of the occurrence and stated the same story which was narrated by son of deceased---Said witnesses attributed the role of firing to the accused and gave consistent, natural and straightforward ocular account of the occurrence---Defence subjected them to lengthy cross-examination, but their testimony remained unshaken and un-shattered---Nothing was in cross-examination to show that the accused was falsely implicated in the case---Presence of the said witnesses on the spot was proved---Investigating Officer had recorded statement of the said witnesses soon after the occurrence---Testimony of the eye-witnesses was duly corroborated by the recovery of blood-stained clothes of the deceased---Medical evidence produced by the prosecution supported and corroborated testimony of the eye-witnesses and no contradiction could be pointed out by the defence---Parties were known to each other previously and the question of mistaken identity of the real culprits did not arise and it was hard to believe that both the witnesses and even the complainant would substitute the real culprits with the accused---No motive had been set up by the prosecution---Absence of the motive would not affect the prosecution case nor would cast any shadow of doubt on the prosecution case---Both the prosecution and defence had suppressed the actual facts, leading to the incident---Possibility could not be ruled out that something must have happened between the parties, which led to the said incident but had not been brought to surface, even otherwise, it did not appeal to a prudent mind that without any strong motive the accused would take such an extreme step of killing the deceased, when there was no enmity---Sentence of death was not compatible with the circumstances of the case, therefore, sentence of imprisonment for life would commensurate with the gravity of offence committed by the accused---Conviction of the accused under S.302(b), P.P.C. was maintained but his sentence of death was altered to imprisonment for life, in circumstances---Appeal was dismissed with said modi-fication.

Allah Ditta v. The State PLD 2002 SC 52; Muhammad Riaz and another v. The State 2007 SCMR 1413; Muhammad Sharif v. The State PLD 2009 SCMR 709; Fayyaz alias Fiazi v. The State 2017 SCMR 204 and Rehmat Khan v. The State 2017 SCMR 2034 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Accused was charged for committing murder of the brother of complainant by firing---Recovery of weapon and crime empty---Scope---Record showed that crime weapon i.e. pistol was recovered from the accused at the time of his arrest from the house of his daughter---Investigating Officer secured bullet empties from the place of occurrence---However, the recovered empties had not been sent to Firearm Expert to ascertain whether the same was fired from the recovered pistol---Recovery of pistol was of no help to the prosecution case, in circumstances.

(c) Criminal trial---

----Witness---Related witness---Testimony of related witness---Reliance---Scope---Mere relation of witness with the deceased was no ground to discard his/her testimony, if his evidence was found independent and truthful, therefore, his testimony without looking for any other corroborative evidence, would alone be sufficient to establish the charge---Evidence of related witness who was not found inimical and were confidence inspiring would hardly need any corroboration.

Aminullah Kakar for Appellant.

Faizullah Khan Kakar for the Complainant.

Habibullah Gul, Additional Prosecutor General ("A.P.G.") for the State.

2021 Y L R 1579

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar and Muhammad Ejaz Swati, JJ

KHUSHHAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.(s) 15 of 2020, decided on 8th June, 2020.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of about eight hours in lodging the FIR---Effect---Prosecution case was that the accused and co-accused persons tried to take away two bullocks of complainant, when they tried to catch accused persons, they started firing, as a result brother of complainant got injured and succumbed to the injuries---Record showed that FIR in respect of the incident in question had been lodged after about eight hours, and thus, a possibility regarding deliberations before lodging of the FIR could not be safely ruled out of consideration.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Ocular and medical evidence---Contradictions---Prosecution case was that the accused along with his co-accused persons tried to take away two bullocks of complainant, when they tried to catch accused persons, they started firing, as a result brother of complainant got injured, and succumbed to the injuries---Record showed that the sole eye-witness produced by the prosecution was the complainant, who was also brother of the deceased---Complainant had claimed that on his screaming, his uncle and another person had also attracted to the place of occurrence, however, the prosecution had failed to produce and examine the said witnesses in support of accusation---Instead of providing support to the ocular account, the medical evidence produced by the prosecution had gone a long way in creating dents in the case of prosecution---Occurrence had taken place at 1:30 a.m. while the examination of the dead body had been conducted by Medical Officer after eleven hours of the death of the deceased giving rise to an inference that the time had been consumed by the complainant party and the local police in cooking up a false story---Astonishingly, firing had been attributed to as many as six persons while the deceased had sustained a single firearm injury---Medico Legal Certificate showed that the dead body of deceased was brought to the hospital by the police authorities that too after eleven hours of the occurrence---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

(c) Criminal trial---

----Absconsion---Scope---Absconsion was not a substantive piece of evidence, it was a corroborative piece of evidence---Where direct evidence failed, corroborative piece of evidence was of no avail.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Night-time occurrence---Source of light---Scope---Prosecution case was that the accused and co-accused persons tried to take away two bullocks of complainant, when they tried to catch accused persons, they started firing, as a result brother of complainant got injured, and succumbed to the injuries---Incident statedly had taken place at about 1:30 a.m. in the mid of March, 2010, at a distance of 150/200 paces from the house of complainant in absence of light---Although the prosecution had mentioned availability of electric light at the house of complainant yet admittedly no electric bulb had been secured during the investigation of the case---Identification of the culprits by the complainant and attribution of a specific injury to the deceased, in circumstances, was a claim too tall to be accepted---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

(e) Criminal trial---

----Benefit of doubt---Principle---If any reasonable doubt arose in the prosecution case, the benefit thereof must be extended to the accused not as a matter of grace or concession but as a matter of right.

(f) Criminal trial---

----Benefit of doubt---Principle---Any reasonable doubt arising from the prosecution evidence, pricking the judicious mind, would be sufficient for acquittal of the accused.

Ehsan Rafique Rana for Appellant.

Habibullah Gul, Additional Prosecutor General for the State.

2021 Y L R 1619

[Balochistan]

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

ABDUL KHALIQ---Appellant

Versus

SHER ALI and 3 others---Respondents

Criminal Acquittal Appeal No. 20 of 2020, decided on 30th June, 2020.

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

----Ss. 337-A(i), 337-F(i), 337-L(2), 427, 147, 148 & 149---Shajjah-i-khafifah, ghayr-jaifah-mudihah, causing hurt, mischief causing damage to the amount of fifty rupees, rioting, rioting armed with deadly weapons, unlawful assembly---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused and unknown co-accused while armed with deadly weapon assaulted on complainant party, due to which, the companion of complainant sustained injuries---Record transpired that injured witness stated in his statement before the Trial Court that his both hands were fractured due to beating but on the other hand medical certificate produced by Medical Officer was silent to that effect---Complainant stated in his report that he received deep injuries due to beating but on the other hand Medical Officer admitted during cross examination that she did not find any injury on the body of complainant---Victim/injured had not challenged the acquittal of accused persons as the appeal had been filed by the complainant, who had not received any injury in the incident as provided under S.417(2-A), Cr.P.C.---Report of the complainant revealed that victim had received injuries, which showed that the victim was not minor rather he was having sense and was alive---Complainant, who was not an injured, could not file the appeal---Injured alone was competent to file appeal being an aggrieved person---Injured person being the aggrieved was neither insane nor minor, did not come forward to challenge the judgment impugned---Appeal filed by the complainant was incompetent, in circumstances---Trial Court had considered all the material present on record properly and arrived to the conclusion which was based on proper appreciation of the facts and law, thus did not need interference by High Court---Appeal against acquittal was dismissed in limine.

Mir Gul's case 1999 PCr.LJ 1507 and Jallan v. Muhammad Riaz PLD 2003 SC 644 rel.

(b) Appeal against acquittal---

----Double presumption of innocence---Interference---Acquittal carried with it double presumption of innocence---Such order could only be reversed when found blatantly perverse, resting upon fringes of impossibility and resulting into miscarriage of justice---Order of acquittal could not be set aside merely on the possibility of a contra view.

Jameel Ramzan Dehwar (absent) for Appellant.

2021 Y L R 1696

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Abdul Hameed Baloch, JJ

MANDOKHAIL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 259 of 2019, decided on 29th June, 2020.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of about three days in lodging the FIR---Effect---Prosecution case was that accused and co-accused committed murder of the son of complainant by firing---Record showed that the occurrence was taken place on 25th May, 2018, whereas the complainant submitted fard-e-biyan for registration of FIR with delay of three days without any plausible explanation---Complainant stated that he was busy in taking fatiha due to which he could not immediately approached the Levies Station for registration of FIR---Contention of complainant was negated by the Investigating Officer, who stated that on the day of occurrence he visited the venue of occurrence on the pointation of complainant and prepared memos---Complainant had tried to cover inordinate delay in registration of FIR---First Information Report was corner stone of the case and where recording of FIR became doubtful the whole prosecution story set out in the FIR itself would be doubtful---First Information Report was registered with the delay of three days without any plausible explanation which created doubts about its credibility---Undoubtedly, without unreasonable explanation, the delay in filing FIR led to suspicion in the truth of prosecution case---Circumstances established that the prosecution evidence could not be termed to be confidence inspiring---Appeal against conviction was allowed, in circumstances.

Akhtar Ali v. The State 2008 SCMR 6 and Noor Muhammad v. The State 2010 SCMR 97 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Motive not proved---Effect---Prosecution case was that the accused and co-accused committed murder of the son of complainant by firing---Record showed that the complainant in his fard-e-biyan stated that eleven years ago the absconding accused with his companions killed his brother and due to non arrest of culprits he submitted an application for their arrest---Levies Authorities raided their house due to which they became furious/angry and threatened the complainant of dire consequences, but the record was silent in that regard---Complainant had not produced the copy of FIR in respect of murder of his brother---Complainant had stated the motive for commission of offence as old enmity---Complainant specifically alleged the motive for committing murder of his son---Prosecution failed to collect any incriminating evidence in order to prove the motive---Appeal against conviction was allowed, in circumstances.

Ahmed Yar v. The State 2005 YLR 747 rel.

(c) Criminal trial---

----Motive---Scope---Prosecution was not bound to prove the motive, but once a motive was set up then the prosecution was to prove the same---If prosecution failed in proving the motive, it caused damage to the prosecution case.

(d) 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---Unnatural conduct of witnesses---Scope---Prosecution case was that the accused and co-accused committed murder of the son of complainant by firing---Ocular account of the incident had been furnished by three eye-witnesses including complainant---Statements of ocular witnesses showed that the accused and absconding accused came out from the trench---Absconding accused made firing upon deceased, whereas the witnesses were near to the accused and absconding accused, but they were not harmed---Ocular witnesses were father, mother and brother of the deceased---Circumstances suggested that it was unnatural that the accused killed the deceased in presence of witnesses, and they let them go, which did not appeal to prudent mind that while killing a person in presence of his close relatives the accused would not attempt to cause any injury/kill the prosecution witnesses leaving them for evidence to be hanged---Record reflected that the ocular witnesses attributed specific role of firing to absconding accused---As per ocular account despite being armed with sophisticated weapons the accused did not cause harm to the witnesses---Record reflected that the deceased was examined by a dispenser, while Medical Officer appeared to testify---Witness exhibited letter of Investigating Officer in regard of post mortem of deceased---Medico Legal Certificate was not exhibited---Document which was not exhibited could not be taken into consideration---Medical evidence was confirmatory/supporting, which was never held to be corroborative evidence to identify the culprit---Circumstances established that the prosecution evidence could not be termed to be confidence inspiring---Appeal against conviction was allowed, in circumstances.

Dholu Khan v. The State 2002 PCr.LJ 690; Muhammad Farooq v. The State 2006 SCMR 1707 and Hashim Qasim v. The State 2017 SCMR 986 rel.

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

----S. 34---Common intention---Scope---Mere presence of a person with an accused at the relevant time could not lead to the inference that he shared common intention with other---If the prosecution alleged that the offence was committed with common intention which presupposed prior consent, it must be proved that the offence was committed by pre-arranged plan--- Inference of common intention was not be drawn unless it was proved by direct evidence or circumstances.

Hakmin Zafar v. The State 2017 YLR 232 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of blood-stained clothes of deceased, blood-stained earth and casing---Scope---Prosecution case was that the accused and co-accused committed murder of the son of complainant by firing---Record reflected that the blood-stained clothes of deceased, blood-stained earth and casing were secured on 25th May, 2018---Levies Constable/witness in his deposition stated that he along with the Investigating Officer visited the venue of occurrence on 25th May, 2018, where the Investigating Officer had taken into possession the blood-stained shirt, trouser and handkerchief and prepared recovery memo---Complainant in his statement stated that on the day of occurrence he shifted the dead body to his house---Facts of the case suggested that it was unbelievable that said articles were kept in an abandoned place for three days---Even otherwise the referred articles were received in Forensic Science Laboratory with the delay of more than forty days without any plausible explanation that during such period where those articles were kept and in whose custody---Circumstances established that the prosecution evidence could not be termed to be confidence inspiring---Appeal against conviction was allowed, in circumstances.

Tariq Ali Tahir for Appellant.

Muhammad Younas Mengal, Additional Prosecutor General for the State.

Iqbal Ahmed Kasi and Nadeem Ahmed Sheikh for the Complainant.

2021 Y L R 1867

[Balochistan]

Before Abdul Hameed Baloch, J

NOOR AHMED and others---Applicants

Versus

GUL AHMED and others---Respondents

Civil Revision No. 178 of 2017, decided on 29th September, 2020.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Fraud and misrepresentation---Onus to prove---Applicants assailed judgment and decree which was passed on the plea of fraud and misrepresentation---Validity---Scope of S.12(2), C.P.C. was to restrict only to decide matter of misrepresentation and fraud---Application under S. 12(2), C.P.C. must plead and prove that misrepresentation and fraud was committed by parties to suit while obtaining judgment, decree or order---Burden to prove was upon applicants to prove plea of fraud and misrepresentation and they were to show their legal title and right vested in them in respect of property in question---Applicants claimed their right more than 24 years after institution of suit by respondents---Such conduct showed ignorance of applicants about pending litigation between respondents---High Court in exercise of revisional jurisdiction declined to interfere in orders passed by two Courts below---Revision was dismissed, in circumstances.

Faizullah v. Atta Muhammad 2010 MLD 1959 ref.

Khalil Ahmed Panezai for Applicants.

Musawar Iqbal for Respondents Nos. 1 to 7 and Muhammad Ayub, Assistant Advocate General for Official Respondent.

2021 Y L R 2041

[Balochistan]

Before Muhammad Kamran Khan Mulakhail, J

GUL MIR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 198 and Murder Reference No. 6 of 2014, decided on 24th July, 2017.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Accused was charged for committing murder of cousin of the complainant by shotgun fire---Ocular account of the incident had been furnished by five witnesses---Occurrence, in the present case was reported by the complainant, who did not mention the motive of occurrence, it was quite natural because complainant was not resident of vicinity and was on visit to the father of the accused---Record showed that an altercation between children of both sides gave rise to the altercation between their elders---Said recent event might not be in the knowledge of the complainant, on the other hand, two witnesses/brothers of the deceased were also living in the same boundary-wall and were party to the altercation between the two families; thus, said brothers of deceased being natural witnesses stated a true account and deposed in respect of very reason behind the murder of their brother---Statements of witnesses recorded under S.161, Cr.P.C. and their court statements clearly mentioned the motive behind the occurrence---Motive emerged through testimonies of independent witness could not be termed as dishonest and improved version of the prosecution's case, but in fact brought a clearer picture before the court---Crime weapon (shotgun) and an empty casing of a bullet fired from said shotgun were not recovered---Brother of deceased provided the names of witnesses, who were gathered on the spot after the occurrence and their testimonies being independently corroborated by the other eye-witnesses of the occurrence were not only reliable but being confidence inspiring were sufficient to record conviction against the accused---Ocular account of the witnesses was corroborating each other on material points and the defence had failed to shatter their credence through any independent adverse evidence, being contrary to the case as set out by the prosecution---Circumstances established that the prosecution had successfully proved the charge of murder of the deceased against the accused beyond the shadow of any reasonable doubt; however, it could not be gathered from record that murder of the deceased was premeditated or was based on some previous motive between the parties---Awarding death sentence to the accused would be against the dictates of justice---Possibility of sudden provocation developed at the spur of the moment could not be ruled out---Possibility could not be ruled out that due to altercation between the parties, the deceased would have entered into the havaili of accused, and the accused under the fear of injury or due to sudden provocation fired upon him---Considering said aspects of the matter as mitigating circumstances, capital punishment could not be awarded to accused, therefore, sentence of death awarded to accused was altered to that of imprisonment for life---Appeal was dismissed with said modification.

(b) Criminal trial---

----Motive---Scope---Absence of motive was not always termed as fatal to the prosecution.

(c) Criminal trial---

----Investigation---Duty of Investigating Officer--- Scope--- Any leverage or concession extended to the accused, being lapses on the part of the investigating agency, would not be termed fatal to prosecution case---If said lapses were not materially affecting the veracity and credence of ocular account, they would be considered as immaterial.

(d) Criminal trial---

----Recovery of weapon and crime empties---Scope---Recovery of crime weapon and empties was not a mandatory requirement of law---Same being circumstantial and/or corroboratory piece of evidence only tends corroboration to the other pieces of evidence---In absence of corroborative evidence, particularly, in respect of incriminating articles, which are related to ancillary proceedings of the investigation, will have no direct impact upon the ocular account, therefore, they will not be fatal to a credible direct evidence.

Imran Ashraf and 9 others v. The State 2001 SCMR 424 and Assadullah v. Muhammad Ali and 5 others PLD 1971 SC 541 rel.

(e) Criminal trial---

----Site plan---Scope---Site plan was not a substantive part of evidence, but being a corroboratory piece of evidence, was confirmatory in nature for lending support to an ocular account of the occurrence---Mere omission to mention the position of eye-witness in a site-plan was not fatal to the prosecution case.

Ali Sher v. The State PLD 1980 SC 317; Mehr Ali v. The State 1968 SCMR 161; Sardar Khan v. The State 1998 SCMR 1823; Abdul Rauf v. The State 2003 SCMR 522 and Saleh Muhammad alias Hashim Marri v. The State 2013 PCr.LJ 692 rel.

(f) Criminal trial---

----Evidence---Ocular account and medical evidence---Conflict---Effect---In case of conflict between the ocular account and medical evidence, the ocular account would prevail over the medical evidence and same being confirmatory in nature would not affect the ocular account.

Iqbal alias Bhala v. The State 1994 SCMR 1 rel.

Manzoor Ahmed Rehmani and Rizwan Ali Soomro for Appellant (in Criminal Appeal No. 198 of 2014).

Manzoor Ahmed Rehmani and Rizwan Ali Soomro for Respondent (in Murder Reference No. 6 of 2014).

Yahya Khan, D.P.G. for the State.

2021 Y L R 2132

[Balochistan]

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

MUHAMMAD QAIM---Petitioner

Versus

MUHAMMAD WALI alias BHUTTO and 4 others---Respondents

Constitution Petition No. 532 and Criminal Revision Petition No. 47 of 2017, decided on 21st July, 2020.

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

----S. 337-F(v)--- Shajjah-i-hashimah---Appreciation of evidence---Sentence, modification of---Accused were charged for causing injuries on the face of complainant/injured with sticks and fractured his leg---Occurrence took place on 03.08.2016 at 12:00 noon and the FIR was lodged on the same date at 1:00 p.m. promptly without any delay---Complainant as well as victim of the case stated in his statement that the accused armed with sticks attacked upon him and he received injuries---Statement of complainant was corroborated with the statement of eye-witness of the occurrence---Eye-witness had deposed that on the day of occurrence the accused armed with sticks attacked upon complainant who received injuries and he took the injured to hospital---Name of the said witnesses also mentioned in the FIR as a witness, which was lodged promptly and statement under S.161, Cr.P.C., of injured was also recorded on the same day by Investigating Officer---Statement of the said prosecution witnesses reflected that they remained unanimous qua the date, time, mode and manner of occurrence---Pen-picture of the occurrence coming out of statements of the prosecution witness of ocular account straightaway rang true and seemed to be next to natural---During the course of cross-examination not a single question was put to the prosecution witnesses regarding the salient features of the prosecution version in order to create any sort of dent in the credibility of their testimony---Circumstances established that accused were first offenders, thus, they could not be burdened with sentence of imprisonment under Tazir---Rigorous imprisonment for three months awarded to the accused under S.337-F(v), P.P.C. by the Trial Court and upheld by the appellate court was contrary to S.337-N(2), P.P.C., hence the same was set-aside---Enhance-ment of Daman by the revisional court was so unjustified, therefore, both the accused were held liable to pay Daman of Rs.20,000/- each to the injured under S.337-F(v), P.P.C.---Revision petition was disposed of with said modification.

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

----S. 337-F(v)---Shajjah-i-hashimah---Appreciation of evidence---Sentence, modification of---Medical evidence---Scope---Accused were charged for causing injuries on the face of complainant/injured with sticks and fractured his leg---Medical Officer/ witness examined the injured and found that two injuries on his person and he also observed in the medical certificate that one on his face and there was a fracture on left leg---Statements of injured and eye-witness were corroborated with the medical evidence produced by Medical Officer and during course of examination no contradiction was pointed out between the ocular account and medical evidence---Both the courts below, after appreciation of the evidence, rightly convicted the accused under S.337-F(v), P.P.C.---Nothing had been brought on record by the prosecution to show involvement of the accused in any other criminal case to consider them hardened, dangerous criminal or previously convicted, hence their case was covered by S.337-N(2), P.P.C.---Circumstances established that accused were first offenders, thus, they could not be burdened with sentence of imprisonment under Tazir---Rigorous imprisonment for three months awarded to the accused under S.337-F(v), P.P.C. by the Trial Court and upheld by the appellate court was contrary to S.337-N(2), P.P.C., hence the same was set-aside---Enhancement of Daman by the revisional court was so unjustified, therefore, both the accused were held liable to pay Daman of Rs.20,000/- each to the injured under S.337-F(v), P.P.C.--- Revision petition was disposed of with said modification.

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

----Chap. XVI [Ss.299-338-H]---Scope---Held, in all cases of hurt provided for in Chap. XVI of the Penal Code, 1860, the normal punishment of imprisonment as Tazir provided for the relevant offence could be awarded to an offender only where the offender was a previous convict, habitual or hardened, desperate or dangerous criminal or the offence had been committed by him in the name or on the pretext of honour.

Abdul Wahab and others v. The State and others 2019 SCMR 506 rel.

Iqbal Ahmed Kasi for Petitioner (in C.P. No. 532 of 2017).

Naseebullah Kasi for Respon-dents Nos. 1 and 2 (in C.P. No. 532 of 2017).

Yahya Baloch, Deputy Prosecutor General for the State (in C.P. No. 532 of 2017).

Sarwar Khan Kakar for Petitioner (in Criminal Revision Petition No. 47 of 2017).

Naseebullah Kasi for the Complainant (in Criminal Revision Petition No. 47 of 2017).

Yahya Baloch, Deputy Prosecutor General for the State (in Criminal Revision Petition No. 47 of 2017).

2021 Y L R 2182

[Balochistan]

Before Muhammad Hashim Khan Kakar and Muhammad Ejaz Swati, JJ

NAJEEBULLAH---Appellant

Versus

The STATE through Prosecutor General, Balochistan---Respondent

Criminal Appeal No. 235 of 2019, decided on 13th May, 2020.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-i-amd and common intention---Appreciation of evidence---Benefit of doubt---Delayed FIR--- Dishonest improvement---Withholding best evidence--- Related witness--- Chance witness--- Scope---Accused along with others were alleged to have attacked upon the deceased, who took shelter in a shop but the accused persons being armed with pistols entered into the shop and made firing upon the deceased---First Information Report was lodged with a delay of about 23 hours without any plausible reason---Accused was nominated in the FIR but he was not assigned any role---Accused was later on assigned the role of holding the deceased but no reliance could be placed upon such an improved statement---No plausible explanation was furnished as to why the shopkeeper or the person who took the deceased to the hospital was not examined---Non-production of most natural and material witnesses strongly led to an inference that they would not have supported the prosecution case---Prosecution witnesses were closely related to the deceased and were chance witnesses---Prosecution case was highly doubtful and was not proved beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Syed Ayaz Zahoor for Appellant.

Umar Dogar, Kamran Murtaza, Adnan Ejaz and Khalil-ul-Rehman for the Complainant.

Habibullah Gul, A.P.G. for the State.

2021 Y L R 2200

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Abdul Hameed Baloch, JJ

MUHAMMAD AYUB and 2 others---Petitioners

Versus

The STATE---Respondent

Criminal Appeal No. 463 and Murder Reference No. 22 of 2019, decided on 20th July, 2020.

(a) Criminal trial---

----Medical evidence---Scope---Medical evidence could only be used for confirmation of ocular evidence regarding seat of injuries, time of occurrence and weapon of offence used---Medical evidence by itself does not constitute any corroboration qua the identity of the accused persons to prove their culpability.

Muhammad Sharif v. The State 1997 SCMR 866 and Altaf Hussain v. Fakhar Hussain 2008 SCMR 1103 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Unnatural conduct of witnesses---Scope---Accused were charged for committing murder of the son of complainant by inflicting dagger blows---Accused was convicted and sentenced to death, whereas the co-accused were convicted and sentenced to imprisonment for life---Ocular account of the incident had been furnished by three eye-witnesses---Record transpired that if the statements of said witnesses were taken into consideration together, it would become clear that the said witnesses had not told the whole truth---Testimony of the witnesses showed that they were present at the venue when the accused along with deceased came to the field, where other two co-accused caught hold of deceased---Accused caused dagger blows to the deceased---Witnesses were related to deceased family, but they remained silent spectators, did not attempt to rescue the deceased from the clutches of the accused party---Even the conduct of the witnesses was unnatural and could not appeal to the mind of prudent person---Witnesses failed to satisfy their presence at the scene of occurrence at the relevant time---Occurrence was taken place in the fields where the farmers and other persons were present---Prosecution did not attempt to record the statement of independent person---Circumstances established that the prosecution failed to discharge its responsibility of proving the case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Dur Muhammad v. The State 2020 YLR 470 ref.

Liaquat Ali v. The State 2008 SCMR 95 rel.

(c) Criminal trial---

----Witness---Chance witness, statement of---Scope---Testimony of chance witness could not be accepted unless he justified his presence with valid reason---Without convincing explanation the statement of chance witness would fall in the category of suspected witness.

Mst. Sughran Begum v. Qaiser Pervez 2015 SCMR 1142 rel.

(d) Criminal trial---

----Witness---Related witness---Statement of related witness---Reliance---Scope---Mere relationship was no ground to disbelieve the truthful testimony of related witness.

(e) Criminal trial---

----Conviction---Scope---Conviction must be founded on unimpeachable evidence and certainty of guilt.

Safdar Baloch's case 2019 SCMR 1412 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Ocular and medical evidence--- Contradictions---Scope---Accused were charged for committing murder of the son of complainant by inflicting dagger blows---Accused was convicted and sentenced to death, whereas co-accused were convicted and sentenced to imprisonment for life---Record showed that the statement of ocular account was not confirmatory with medical evidence---Testimony of eye-witnesses revealed that co-accused persons caught hold of the deceased, whereas the accused caused dagger blows to him, meaning thereby that there was no chance to resist---Medical evidence showed deep cut wound on the right and left base of thumb---Meaning thereby that the deceased had tried to catch the dagger due to which his both hands sustained injuries---Circumstances established that the prosecution failed to discharge its responsibility of proving the case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence--- Benefit of doubt---Contradiction in the statements of witnesses of ocular account---Scope---Accused were charged for committing murder of the son of complainant by inflicting dagger blows---Accused was convicted and sentenced to death, whereas the co-accused were convicted and sentenced to imprisonment for life---Record showed that the testimony of ocular account was contradictory with each other---Witness of ocular account stated that he along with three others including remaining witnesses of ocular account had taken the deceased to the hospital---Other witness of ocular account stated that he was present in bazar at the relevant time, whereas another witness stated that he and one other witness had taken the deceased to the hospital---Said fact transpired that the witnesses were not accompanying each other at relevant time therefore, they transposed as eye-witnesses---Circumstances established that the prosecution failed to discharge its responsibility of proving the case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

(h) Criminal trial---

----Witness---Dishonest improvement in evidence---Effect---Where the testimony of a witness found inconsistent, contradictory or improvement was made in order to strengthen the prosecution case, the same lost its credibility---For disbelieving testimony of a witness it was not necessary that there should be numerous infirmities---If there was one which would impeach the credibility of a witness that would make his entire statement doubtful.

Jehan Bahadur v. The State 2013 YLR 2772 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Report of blood-stained clothes---Delay---Scope---Accused were charged for committing murder of the son of complainant by inflicting dagger blows---Accused was convicted and sentenced to death, whereas the co-accused were convicted and sentenced to imprisonment for life---Investigating Officer produced Forensic Science Laboratory Report regarding blood-stained clothes of the deceased---Parcel of blood-stained clothes of deceased was received in Forensic Science Laboratory with the delay of more than 85 days without any explanation---Report of blood-stained clothes though was positive, however, the prosecution had failed to justify the delay---Positive Report of Laboratory, without plausible explanation for such delay, lost its evidentiary value---Circumstances established that the prosecution failed to discharge its responsibility of proving the case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Asad Rehmat v. The State 2019 SCMR 1156 rel.

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

----Art. 117---Burden of proof---Scope---Prosecution had to prove its case by standing on its own legs and it could not take benefit from the weaknesses of the case of defence.

Azhar Iqbal v. The State 2013 SCMR 383; Waqar Ahmed v. Shaukat Ali and others 2006 SCMR 1139 and Javaid v. The State PLD 1994 SC 679 rel.

(k) Criminal trial---

----Benefit of doubt---Principle---If there were such circumstances which created reasonable doubt regarding the prosecution case, the same would be sufficient to give benefit to accused---Mistake of releasing a criminal is better than punishing an innocent person.

Ayub Masih v. The State PLD 2002 SC 1048 rel.

Ali Ahmed Kurd for Appellants.

Muhammad Yahya Baloch, Deputy Prosecutor General for the State.

2021 Y L R 2230

[Balochistan]

Before Zaheer-ud-Din Kakar, J

FAQIR DAD---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 209 of 2020, decided on 28th May, 2020.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd and common intention---Bail, grant of---Implication of accused on supplementary statement---Absconsion---Acquittal of co-accused---Further inquiry--- Scope--- Accused sought bail after arrest in a case lodged under Ss. 302 & 34, P.P.C.---Accused was not nominated in the FIR rather he was arrested on the basis of supplementary statement of complainant recorded after nine days of lodging of FIR, thus, the possibility of deliberations and consultations could not be ruled out---Only piece of evidence against the accused was his disclosure, which prima facie was not corroborated by any other piece of evidence---Court, while considering the bail plea of accused, could not ignore the acquittal of co-accused vis-à-vis the merits of his case---Accused person's absconsion of ten years could not be treated as a bar to his release on bail---Case of accused was one of further inquiry---Petition for grant of bail was allowed, in circumstances.

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

----S.497---Bail---Tentative assessment---Scope---Only tentative assessment of facts is required while disposing of ancillary matters like bail, etc.

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

----S. 497---Bail---Further inquiry---Scope---Bail is to be allowed to an accused as of right and not by way of grace or concession in a case calling for further inquiry into his guilt.

Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182; Qamar alias Mitho v. The State and others PLD 2012 SC 222 and Ehsanullah v. The State 2012 SCMR 1137 ref.

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

----S. 497---Bail---Acquittal of co-accused--- Scope--- Court, while considering the bail plea of an accused, cannot ignore the acquittal of co-accused.

Jam Sadiq Ali v. State 1989 PCr.LJ 1910 and Nawab Ali v. State 2003 YLR 113 rel.

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

----S. 497---Bail---Absconsion---Scope---Absconsion of an accused cannot be treated as a bar to his release on bail---Rule that fugitive from law shall under no circumstances be enlarged on bail is not absolute if the case of an accused is otherwise found fit for bail on merits.

State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322 and Mithu Pitafi v. The State 2009 SCMR 299 ref.

Khalid Kubdani for Applicant.

Abdul Nafay, State Counsel.

2021 Y L R 2239

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Abdullah Baloch, JJ

Syed ZAHIR SHAH and another---Appellants

Versus

HABIBULLAH alias SABO and others---Respondents

Criminal Acquittal Appeal No. 290 of 2017, decided on 18th August, 2020.

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

----Ss. 365, 147, 148 & 149---Abduction with murder, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Appeal against acquittal---Delay of about twenty five hours in lodging the FIR---Effect---Prosecution case was that the accused persons armed with weapons forcibly alighted the son of complainant in a vehicle and took/abducted him and so far the whereabouts of his son were not known---First Information Report was lodged after unexplained delay of twenty five hours---Fard-e-bayan showed that the alleged incident took place on 15th March 2017 at about 4.30 p.m., but the complainant kept silent on the said date by not bringing the law into motion---On the following day at about 5.30 p.m., complainant approached the Tehsildar and lodged the FIR---Delay in lodging the FIR was not justifiably explained which showed the unnatural conduct of the complainant as his son was abducted by number of accused persons and his life was also in danger but he did not lodge the FIR promptly---Non-reporting the incident immediately to the law enforcing agencies had rendered the entire case of prosecution as doubtful and it appeared that the complainant nominated a number of accused persons in the crime after consultation and deliberation---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against acquittal was dismissed, in circumstances.

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

----Ss. 365, 147, 148 & 149---Abduction with murder, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Appeal against acquittal---Contradictions and dishonest improvements made by complainant---Scope---Prosecution case was that the accused persons armed with weapons forcibly alighted the son of complainant in a vehicle and took/abducted him along with themselves and so far the whereabouts of his son were not known---Contents of fard-e-bayan were silent with regard to source of information of the incident received by complainant but in his court statement, he mentioned that a shopkeeper informed him that 10/11 persons in two vehicles came over there and after torturing abducted his son---Court statement of complainant did not suggest the name of shopkeeper, who informed him about the incident and even the said shopkeeper had simply told him that 10/11 persons abducted his son without disclosing the names of culprits---Complainant had not witnessed the crime directly and even the sole eye-witness of the occurrence also did not disclose the names of culprits then as to how the complainant nominated the accused persons---Both the accused and the complainant party were known to each other prior to incident and accordingly the complainant nominated the accused persons in his fard-e-bayan but he did not identify them in the court---Statement of complainant was contradicted by the shopkeeper, who stated that about two months ago he was present in his shop when a boy came to his shop and stated that few people had abducted son of complainant and thereafter the said child went to the house of complainant and informed him about the incident---Shopkeeper made his ignorance with regard to the names of accused persons--- Statement of shopkeeper fully negated the statement of complainant, who had claimed that he was informed about the incident by the shopkeeper---Source of information about the names of the culprits had not been proved---Alleged abductee contradicted the statements of remaining witnesses---Prosecution thus had failed to prove its case against the accused---Appeal against acquittal was dismissed, in circumstances.

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

----Ss. 365, 147, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Abduction with murder, rioting, rioting armed with deadly weapon, unlawful assembly---Appeal against acquittal---Appreciation of evidence---Withholding of material evidence---Scope---Prosecution case was that the accused persons armed with weapons forcibly alighted the son of complainant in a vehicle and took/ abducted him along with themselves and so far the whereabouts of his son were not known---Record showed that the alleged abductee narrated the whole story with regard to his abduction by the nominated accused persons and it had specifically been stated by him that after three days of incident the nominated accused persons handed him over to three witnesses---None of the said three witnesses were associated in the investigation or produced in the Trial Court to affirm the statement of abductee---Alleged abductee stated that the accused persons had also filmed his naked video, however, in his cross-examination, he admitted that he himself did not watch the said video rather he heard about the same and said video was seen by three witnesses---No explanation on the part of prosecution was available as to why the evidence of those witnesses was withheld, therefore, a presumption under Art. 129(g) of Qanun-e-Shahadat, 1984, could fairly be drawn that had the said witnesses been examined in the court their evidence would have been un-favourable to the prosecution---Prosecution thus had failed to prove its case against the accused---Appeal against acquittal was dismissed, in circumstances.

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

----Ss. 365, 147, 148 & 149---Abduction with murder, rioting, rioting armed with deadly weapon, unlawful assembly---Appeal against acquittal---Appreciation of evidence---Contradictory statement of abductee---Scope---Prosecution case was that the accused persons armed with weapons forcibly alighted the son of complainant in a vehicle and took/ abducted him along with themselves and so far the whereabouts of his son were not known---Abductee, in the Court statement, implicated the accused in the commission of crime while in his confessional statement, he negated the whole case of prosecution that no incident of abduction took place rather the accused came at the place of incident to commit his murder---Furthermore, the alleged abdcutee was not recovered by the law enforcing agency rather after three days of his disappearance he came on picture and after his revelation he recorded his confessional statement before the Judicial Magistrate wherein he negated the whole prosecution case and exonerated all the accused persons---Prosecution thus had failed to prove its case against the accused---Appeal against acquittal was dismissed, in circumstances.

(e) Appeal against acquittal---

----Double presumption of innocence---Interference--- Scope--- Accused after acquittal earned the double presumption of innocence---Acquittal orders were not interfered with, until and unless it was proved on record that the same was perverse, contrary to record, fanciful and not sustainable.

Masoom Khan Kakar for Appellants.

Muhammad Younas Mengal Additional P.G. for the State.

Akhtar Shah for Respondents.

2021 Y L R 2271

[Balocshitan (Sibi Bench)]

Before Abdul Hameed Baloch, J

NIAZ AHMED---Petitioner

Versus

ARBELA KHAN and 2 others---Respondents

Criminal Quashment Petition No.(s) 144 of 2019, decided on 18th March, 2020.

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

----Ss. 249-A & 265-K---Constitution of Pakistan, Art. 199--- Constitutional petition---Quashing of FIR---Availability of alternate remedy---Effect---Petitioner assailed order passed by Ex-officio Justice of Peace and sought quashing of FIR--- Validity--- Petitioner was nominated in the FIR---Trial Court had the discretion to acquit the accused at any stage of the proceedings of trial if it arrived at the conclusion that there was no sufficient incriminating material---Petitioner had sought quashing of criminal case without availing alternate remedy provided under Ss.249-A & 265-K, Cr.P.C.---Constitutional petition was dismissed.

Muhammad Naeem Kakar v Sessions Judge, Zhob, 2018 YLR 654 rel.

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

----S. 561-A---Inherent powers of High Court---Extraordinary jurisdiction---Non-availability of alternate remedy---Scope---Inherent powers of High Court under S.561-A, Cr.P.C. can be invoked in extraordinary cases where no offence is made out or where case is one of no evidence or any illegality is committed causing grave miscarriage of justice---Power under S.561-A, Cr.P.C. cannot be invoked to interrupt the ordinary course of criminal procedure---High Court can interfere under S.561-A, Cr.P.C. where injustice is clear and there is no other provision of law from which the aggrieved party can seek relief---Power under S.561-A, Cr.P.C. cannot be exercised arbitrarily or capriciously but it is to be exercised to do substantial justice.

Rahib Khan Buledi for Petitioner.

Rizwan Ali Soomro and Jamil Akhtar, Additional Prosecutor General for the State.

2021 Y L R 2327

[Balochistan]

Before Abdul Hameed Baloch, J

AZIZULLAH---Appellant

Versus

NIZAMUDDIN and another---Respondents

Criminal Appeal No. 51 of 2018, decided on 20th July, 2020.

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

----Ss. 3 & 4---Criminal Procedure Code (V of 1898), S. 403---Constitution of Pakistan, Art. 13---Prevention of illegal dispossession of property---Cognizance of offence---Persons once convicted or acquitted not to be tried for the same offence---Protection against double punishment and self incrimination---Registration of FIR regarding same incident---Effect---Accused was convicted for having dispossessed the complainant from his land--- Complainant had admitted that he lodged FIR in respect of the same incident---Once FIR was registered then a complaint under S. 3 of Illegal Dispossession Act, 2005 was not competent---Neither the complainant nor the witnesses had seen as to who had occupied the land at midnight---Appeal against conviction was accepted, in circumstances.

Sultan Ahmed v. Additional Sessions Judge Gujranwala 2011 PCr.LJ 487 fol.

(b) Constitution of Pakistan---

----Art. 13---Protection against double punishment and self-incrimination---Scope---Article 13(2) of the Constitution provides that no person shall be prosecuted/punished for the same offence more than once---For applicability of autrefois aquit (formerly acquitted) the following conditions have to be satisfied: (i) there must have been a trial of an accused for the offence charged against him; (ii) the trial must have been by a court of competent jurisdiction; (iii) there must have been a judgment or order of acquittal (iv) the parties must be the same; and (v) fact and issue in earlier and subsequent trial must be identical.

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

----S. 3--- Prevention of illegal dispossession of property---Complaint---Material particulars to be mentioned---Scope---Complainant must give all material particulars in the complaint itself with regard to act of illegal dispossession---No roving inquiry is to be conducted by the Trial Court, in the absence of material particulars, exact date and time of the alleged dispossession, to ascertain whether or not the complainant was dispossessed in terms of Illegal Dispossession Act, 2005.

Muhammad Hayat Khan v. State 2014 YLR 3901 and Dur Muhammad v. State 2010 YLR 470 rel.

(d) Criminal trial---

----Burden of proof---Scope---Burden in criminal cases is always on the shoulders of the prosecution to prove its case beyond reasonable doubt---Prosecution cannot take benefit from the weakness of defence.

(e) Criminal trial---

----Benefit of doubt---Scope---Conviction must be founded on unimpeachable evidence and certainty of guilt---Any doubt that arises in the prosecution case must be resolved in favour of the accused and it is imperative for the court to examine and consider all the relevant proceedings and leading facts of the occurrence so as to arrive at the correct conclusion---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 the guilt of accused then the accused will be entitled to its benefit not as a matter of grace and concession but as right.

Tore Jan alias Jag v. State 2012 PCr.LJ 780 rel.

Rehmatullah Barech for Appellants.

Noor-ud-Din for Respondent No.1.

Abdul Karim Malghani for the State.

2021 Y L R 2366

[Balochistan]

Before Rozi Khan Barrech, J

REHMATULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 27 of 2020, decided on 18th September, 2020.

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

----S. 394---Voluntarily causing hurt in committing robbery---Appreciation of evidence---Benefit of doubt---Accused was charged for forcibly taking away the motorbike of the complainant after tiding his hands and feet with rope and due to resistance of the complainant, his right hand was injured, however accused was apprehended---When the complainant was subjected to cross-examination, he denied the suggestion that on the day of occurrence, he attempted to molest the accused---Record showed that the age of the accused was seventeen years, which was mentioned in the statement of the accused recorded under S.164, Cr.P.C. as well as in his statement recorded under S.340(2), Cr.P.C.---Investigating Officer stated during cross-examination that the accused filed an application for registration of the FIR against the complainant in respect of molesting him---Said witness further stated during cross-examination that he conducted an inquiry under S.157(2), Cr.P.C., however, he stated that the father of the accused did not produce any witness in the said inquiry---Witness further stated during cross-examination that the accused was a student---On the other hand, the record transpired that the age of the complainant was thirty six years---According to the medical certificate, the complainant received two injuries on his hand and there was slightly abrasion marks on his neck, meaning thereby that both the accused and the complainant scuffled with each other at the time of occurrence---Student of the age of 16/17 years could not tie the hands and feet of a person of the age of the complainant, i.e. 36 years---Complainant stated that he came struggling to the road and told the people that the accused was a thief and was trying to snatch his motorcycle---Complainant stated that people caught hold of the accused and informed the levies officials---Said fact did not appeal to a prudent mind as to how did the complainant come to the road and told the people about the occurrence, even though his hands and feet were tied and the accused would still wait the people and the levies officials to come and arrest him---Circumstances established that the 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)---

----S. 394---Voluntarily causing hurt in committing robbery---Appreciation of evidence--- Benefit of doubt---Contradictions in the statements of witnesses---Scope---Accused was charged for taking away the motorbike of the complainant forcibly after tiding his hands and feet with rope and due to resistance of the complainant, his right hand was injured, however accused was apprehended---Recovery witness of the knife stated that he reached the place of occurrence along with the Investigation Officer and recovered the knife from the accused/appellant---Said witness stated during cross-examination that they reached the place of occurrence at 1:10 pm and remained there for fifteen minutes---Witness further stated during cross-examination that they took the accused and reached the Levies Thana at 2:10 pm.---On the other hand, the Investigating Officer stated that the investigation was handed over to him at 2:00 p.m. and he reached the place of occurrence at 2:30 p.m., complainant and other levies officials were present at the spot---Alleged occurrence took place at 1:00 p.m. and the FIR was registered on the same date at 1:50 p.m.---Said contradictory statement of both the said witnesses with regard to the time of lodging FIR casted reasonable doubt in the prosecution case and it had not come on record as to how and who recorded the statement of the complainant and whether the statement was recorded on the spot or the levies thana---Circum-stances established that the prosecution had failed to prove its case against accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

(c) Criminal trial---

----Witness--- Eye-witnesses, statement of--- Contradictions--- Effect--- Person making contradictions and improvements could not be held worthy of credence.

(d) Criminal trial---

----Witness---Injured witness---Scope---Injuries of a witness was only an indication of his presence at the spot but was not informative proof of his credibility and truth.

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

----S. 394---Voluntarily causing hurt in committing robbery--- Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence from the possession of accused--- Reliance--- Scope---Accused was charged for taking away the motorbike of the complainant forcibly after tiding his hands and feet with rope and due to resistance of the complainant, his right hand was injured, however accused was apprehended---Record showed that knife as crime weapon was recovered from the possession of accused---Recovery witness of the alleged occurrence stated that when he reached the place of occurrence and knife was recovered from the accused---Said witness, during cross-examination, stated that when they reached the place of occurrence, many people had gathered at the spot, who had apprehended the accused---Said fact did not appeal to a prudent mind that accused who had been apprehended by the people would keep the knife with himself till the time when the levies officials reached, i.e. after ten minutes---Said aspect of the matter created reasonable doubt in the prosecution case---Even otherwise, the prosecution did not produce any corroborative evidence in support of the statement of recovery witness and none of the other witnesses stated a single word to the effect that the knife was recovered from the accused---Recovery witness stated during cross-examination that the knife, which was produced before the court was not stained with blood---Investigating Officer also did not send the knife to the Forensic Science Laboratory, therefore, that piece of evidence provided no help to the prosecution's case.

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

----S. 394---Criminal Procedure Code (V of 1898), S. 164---Voluntarily causing hurt in committing robbery---Appreciation of evidence--- Benefit of doubt---Confessional statement of accused---Scope---Accused was charged for taking away the motorbike of the complainant forcibly after tiding his hands and feet with rope and due to resistance of the complainant, his right hand was injured, however accused was apprehended---Record showed that the statement of the accused was recorded under S.164, Cr.P.C had not corroborated with the FIR as well as the statement of the complainant---Accused neither stated a single word that he tied the hands and feet of the complainant nor he stated a single word that he kept the knife on the neck of the complainant and tried to snatch his motorcycle---Circumstances established that prosecution failed to establish case against accused.

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

----S. 164---Confession, recording of---Judicial Magistrate, before recording the confessional statement of the accused, was to essentially observe all the mandatory precautions as per High Court Rules and Orders so that all signs of fear inculcated by the investigation agency in the mind of the accused were to be shed out.

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

----S. 394---Criminal Procedure Code (V of 1898), S. 164---Voluntarily causing hurt in committing robbery---Appreciation of evidence---Benefit of doubt---Confession, recording of---Procedure---Accused was charged for taking away the motorbike of the complainant forcibly after tiding his hands and feet with rope and due to resistance of the complainant, his right hand was injured, however accused was apprehended---No precautionary measures, which, in the circumstances of the case, were pre-requisite for recording the confession of a minor accused were observed---Accused, being a minor was provided with no opportunity of counselling, neither by his guardian nor by a lawyer---Judicial Magistrate did not state a single word in his statement as well as in the certificate issued by her that any offer was made to the accused for counselling---Confession of the minor was to be assessed on the same touchstone as to that of the statement of a child witness---Child witness was brought to the dock by relatives while on the contrary child accused was brought to the court by Police Officials for recording his confessional statement where the possibility of tutoring and police fear was always there---Judicial Magistrate did not put the question to the accused that after recording his statement he would not be handed over to police or levies---Judicial Magistrate filled the answers without adhering to the codal formalities and without considering the intellectual level of the minor who was unaware of the consequences of his statement---Judicial Magistrate after recording the statement of the accused under S.164, Cr.P.C handed over the accused to the same levies officials who produced him before her to take him for judicial remand---Confessional statement of the accused in circumstances, was not voluntary and gross illegality was committed by Judicial Magistrate.

Hashim Qasim and another v. The State 2017 SCMR 986 and State through Advocate General Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1 rel.

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

----S. 394---Criminal Procedure Code (V of 1898), S. 164---Voluntarily causing hurt in committing robbery---Appreciation of evidence---Benefit of doubt---Confession, recording of---Infirmities---Effect---Accused was charged for taking away the motorbike of the complainant forcibly after tiding his hands and feet with rope and due to resistance of the complainant, his right hand was injured, however accused was apprehended---Record showed that the Judicial Magistrate had not given sufficient time for reflection before recording the statement of the accused under S.164, Cr.P.C. as it was incumbent upon her to have given sufficient time for reflection, i.e. thirty minutes, with three intervals; henceforth by not doing so, Judicial Magistrate failed to observe pre-cautions held necessary before recording confessional statement---Neither the Judicial Magistrate stated a single word in her statement that she gave time for reflection to the accused nor mentioned the time of reflection in her certificate issued beneath the confessional statement of the accused---Judicial Magistrate stated during cross-examination that she recorded the statement of the accused under S.164, Cr.P.C within 15/20 minutes---Investigating Officer stated during cross-examination that Judicial Magistrate recorded the statement of the accused within half hour---Said fact showed that no time for reflection had been given to the accused before recording his statement under S.164, Cr.P.C., as envisaged under S.364, Cr.P.C., therefore the confessional statement of the accused did not appear to be true and voluntary.

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

----S. 394---Criminal Procedure Code (V of 1898), S. 164---Voluntarily causing hurt in committing robbery---Appreciation of evidence---Benefit of doubt---Delay of about ten days in recording the confessional statement of the accused---Scope---Accused was charged for taking away the motorbike of the complainant forcibly after tiding his hands and feet with rope and due to resistance of the complainant, his right hand was injured, however accused was apprehended---Record showed that the accused was arrested and he was produced before the Judicial Magistrate after ten days of his arrest for recording his confessional statement under S.164, Cr.P.C.---Said delay had not been plausibly explained by the prosecution, which had highly injured its credibility and the same could not be accepted as confidence inspiring against the accused.

Naqeebullah's case PLD 1978 SC 21; Khalid Javed and another v. The State 2003 SCMR 1419; Shoukat Saeed v. The State PLD 1978 Quetta 1 and Pato and another v. The State 2012 MLD 1358 rel.

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

----S. 164--- Confessional statement---Evidentiary value--- Confessional statement was not to be accepted as a substantive piece of evidence to place conviction on it alone unless it was corroborated in each and every detail by other corroborative and circumstantial evidence.

Wali Khan Nasar for Appellant.

Miss Shumaila Iftikhar, State Counsel.

2021 Y L R 2425

[Balochistan]

Before Rozi Khan Barrech, J

SALEH MUHAMMAD---Petitioner

Versus

EXECUTIVE ENGINEER IRRIGATION and 5 others---Respondents

Civil Revision No. 88 of 2019, decided on 24th July, 2020.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Temporary injunction---Scope---Petitioner/plaintiff sought restraining order against the respondents/defendants contending that he was owner-in-possession of the suit-property after purchasing it from the previous owner---Respondents contended that the previous owner had occupied the area of rainy drain for which matter was referred to the concerned Tehsildar---Held, that injunction was not to be granted only on the basis that prima-facie case existed in favour of the plaintiff---Courts were required to take into consideration whether the question of balance of convenience or irreparable loss, to the party seeking such relief, co-existed or not---For grant or refusal of the injunction , pleading documents and supporting evidence was to be examined and the assessment was to be made tentatively , however, where complicated question about merit of the case required framing of issues and evidence was involved, then the injunction order was not to be issued---In the present case, report of the concerned Tehsildar (Revenue Officer) revealed that property-in-question was acquired by the Irrigation Department in the year 1991; award was passed and amount was also paid---Said property was not incorporated in the revenue record in the name of Provincial Government i.e. Irrigation Department--- Petitioner/plaintiff had failed to make out a prima facie arguable case for grant of injunction in his favour and balance of convenience also did not lie in his favour---No illegality or infirmity was found in impugned orders passed by both the Courts below---Revision petition was dismissed, in circumstances.

Marghub Siddiqi v. Hamid Ahmed Khan and 2 others 1974 SCMR 519 ref.

Syed Saleem Akhtar for Petitioner.

Abdul Latif Kakar, Additional Advocate General ("A.A.G.") along with Qurban Jatoi, XEN Irrigation Department and Muhammad Kareem, SDO Irrigation Department for Respondents.

2021 Y L R 470

[Supreme Court (AJ&K)]

Present: Raja Saeed Akram Khan, A.C.J. and Ghulam Mustafa Mughal, J

Sardar JAVAID SHARIF, ADVOCATE, HIGH COURT OF AJ&K and others---Appellants

Versus

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

Civil Appeals Nos. 113, 114, 111, 112, 115, 116 of 2020 and 484 of 2019, decided on 17th July, 2020.

(On appeal from the judgment of the High Court 17.09.2019 in Writ Petitions Nos. 1092, 1130, 1194, 1235, 1255 and 1296 of 2018).

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

----Art. 43(2-A)---Judges of High Court of Azad Jammu and Kashmir (AJ&K), appointment of---Appointment process---Constitutionality---Consultation with the Chief Justice of Supreme Court (Azad Jammu and Kashmir) and Chief Justice of the High Court---In the present case, the requirements regarding consultation process as stated in the Constitution of Azad Jammu and Kashmir and the precedents of the superior Courts were not fulfilled---Consultation had not been made in accordance with the spirit of the provisions of Art. 43(2-A) of the Constitution and the dictum laid down by the superior Courts---Supreme Court declared the appointments of the respondent-Judges, as ultra vires the Constitution and without lawful authority, but directed that validity shall be given to all the acts done by them as Judges on the basis of principle of de-facto doctrine including the drawing of the financial benefits etc.; and that the appointing authority shall initiate the fresh process for appointment against the vacant positions strictly in the light of the guidelines given in Muhammad Younas Tahir's case (PLD 2012 SC AJ&K 42).

The phraseology of Article 43(2-A) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 ('the Constitution') was clear that the President was the appointing authority and the appointment of a Judge in the High Court shall be made on the advice of the Council and after consultation with the Chief Justice of Supreme Court (Azad Jammu and Kashmir) and Chief Justice of the High Court. The words 'after consultation' cited in the said Constitutional provision were very significant, and provided a specific process of consultation for appointment of a Judge in the High Court.

In terms of Article 43(2-A) of the Constitution the President shall initiate the process of consultation and the appointment of a Judge in the High Court shall be made after consultation, as prescribed by law, with both the Chief Justices at the same time, otherwise the process of consultation would be meaningless.

Al Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324 and Muhammad Younas Tahir and another v. Shoukat Aziz, Advocate, Muzaffarabad and others PLD 2012 SC (AJ&K) 42 ref.

Mere mentioning in the summary sent by the President to the Council that consultation had properly been made, did not mean that the Courts could not look into the legality or correctness of the process of appointment of Judges of the High Court.

Azad Government and others v. Sardar Javed Naz and others PLD 2016 SC (AJ&K) 1 ref.

If any objections were raised in respect of the consultative process then it was the job of the Court to determine; whether; the consultation was effective, meaningful, purposive, consensus oriented, simultaneous, leaving no room for complaint or not. It could not be said that the process conducted by the President for appointment of High Court judges could not be scrutinized.

Muhammad Younas Tahir and another v. Shoukat Aziz, Advocate, Muzaffarabad and others PLD 2012 SC (AJ&K) 42 ref.

When the consultation process, in the present case, was adjudged on the touchstone of the relevant law, it appeared that many rooms for complaint of arbitrariness or unfair play were found as nothing was available on record to show that any effort was ever made to ensure the strict compliance of the constitutional provisions as well as the principle of law laid down by the superior Courts. Consultation with both the Chief Justices had to be made at the one and the same time, otherwise the same would be meaningless, however in the present case the President on 11-11-2017, sought the list of nominees from the Chief Justice of the High Court and thereafter on 12.12.2017, forwarded the list of nominees sent by Chief Justice of High Court to the Chief Justice of the Supreme Court for consultation. Such practice had not been approved by the superior Courts. After obtaining the lists of the nominees from the concerned consultees, the record was silent as to whether any deliberation had been made on the names of the nominees. Despite the fact that the Chief Justice of the Supreme Court in his letter highlighted the requirement of law and the Council while rejecting the summary of five nominees sent by the President specifically mentioned that the consultation should be made in the light of the guidelines given in Muhammad Younas Tahir's case (PLD 2012 SC (AJ&K) 42), the appointing authority (the President) had not taken any step and ignored the observations of the relevant quarters. After rejection of his summary, the President should have taken solid steps to remove the opacities pointed out in the letter sent by the Council, but unfortunately no such step had been taken.

Muhammad Younas Tahir and another v. Shoukat Aziz, Advocate, Muzaffarabad and others PLD 2012 SC (AJ&K) 42 and M. Tabassum Aftab Alvi v. Raja Waseem Younis and 6 others 2020 SCR 1 ref.

The concerned authorities brought on record a photocopy of a paper in which some dates had been mentioned to substantiate that on the said dates, the meetings as well as telephonic conversation in connection with the consultation were held by the President. Said paper was not supported by any documentation, i.e. minutes of meeting or follow-up letters etc. and even the same did not speak that any joint meeting was ever held; therefore, said document did not fulfill the requirement of law. Even otherwise, mostly the entries recorded in said document were irrelevant as entry Nos.1 to 11 were relevant to the period prior to the appointments of the consultees concerned with the present matter; some entries related to the period prior to the rejection of the summary by the Chairman of the Council and some related to the period when the summary was pending before the Council and the issue of consultation was no more alive.

A summary of call history of the personal mobile number of the President was also brought on record to substantiate that the President on many occasions consulted with the Chief Justice of the High Court through telephonic calls, however, it was not sufficient to prove that the calls were made in connection with the consultation or any other purpose or the consultation as prescribed by law, was made through telephonic calls. Approval of such uncertain documents in such a sensitive issue, which related to the independence of judiciary, may amount to opening a way for complaints as well as unfair play in future which was against the spirit of Constitution and the settled principles of law.

Consultation, in the present case had not been made in accordance with the spirit of the provisions of Article 43(2-A) of the Constitution and the dictum laid down by the superior Courts. Supreme Court declared the appointments of the respondent-Judges, as ultra vires the Constitution and without lawful authority, and set-aside the same with the directions that validity shall be given to all the acts done by them as Judges on the basis of principle of de-facto doctrine including the drawing of the financial benefits etc.; and that the appointing authority shall initiate the fresh process for appointment against the vacant positions strictly in the light of the guidelines given in Muhammad Younas Tahir's case (PLD 2012 SC (AJ&K) 42).

Supreme Court observed that in the impugned judgment if the High Court had reached the conclusion that the dictum laid down by the Supreme Court had not been followed in the consultative process in letter and spirit then it was the constitutional obligation of the High Court to abolish such process; but the High Court tried to give a legal cover to such an invalid process, which was very undesirable.

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

----Art. 43(2-A)---Judges of High Court of Azad Jammu and Kashmir (AJ&K), appointment of---Appointment to be made on the advice of the Council and 'after consultation' with the Chief Justice of Supreme Court (Azad Jammu and Kashmir) and Chief Justice of the High Court---Phrase 'after consultation'---Connotation and meaning.

For purposes of appointment of a Judge to the High Court of Azad Jammu and Kashmir, consultation with the Chief Justice of the Supreme Court (Azad Jammu and Kashmir) and Chief Justice of the High Court was a mandatory Constitutional requirement which must be effective, meaningful, purposive, consensus-oriented, simultaneous, leaving no room for complaint of arbitrariness or unfair play. If any questions were raised/lacunas were pointed out in the consultative process, it was the responsibility of the concerned office/authority to substantiate that how the requirement of law had been fulfilled. The President shall initiate the process of consultation and the appointment of a Judge in the High Court shall be made after consultation, as prescribed by law, with both the Chief Justices at the same time, otherwise the process of consultation would be meaningless. The President had to play the role of a bridge among the consultees to achieve the goal of consensus. [pp. 489, 491] B & F

Al Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324 and Muhammad Younas Tahir and another v. Shoukat Aziz, Advocate, Muzaffarabad and others PLD 2012 SC (AJ&K) 42 ref.

(c) Interpretation of statutes---

----Word given a particular meaning by superior courts---'Stare decisis', doctrine of---Scope---In view of the doctrine of stare decisis if the judicial authorities had consistently given a particular meaning to a word for a long period the same should be adopted.

Mst. Zainab Bibi and others v. Mst. Bilqis Bibi and others PLD 1981 SC 56 ref.

(d) Public office---

----Public office holder---Rule of law---Scope---No one was above law and all the (public) offices, from the bottom to the top, were bound to perform their functions in accordance with law.

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

----Art. 43(2-A)---Judges of High Court of Azad Jammu and Kashmir, appointment of---Appointment to be made on the advice of the Council and 'after consultation' with the Chief Justice of Supreme Court (Azad Jammu and Kashmir) and Chief Justice of the High Court---Mode of consultation---Scope.

At the time of appointment of Judges to the High Court, Azad Jammu and Kashmir, no specific mode had been provided in the Azad Jammu and Kashmir Interim Constitution Act, 1974, to make the consultation, however, the Court shall have to scrutinize in each case whether the requisite consultation had taken place or not, keeping in view the substance of the events to reach the conclusion that the consultation was meaningful, purposive and consensus-oriented.

R. Pushpam and another v. The State of Madras, represented by the Secretary, Local Administration Department, fort St. George, Madras, and another AIR 1953 Madras 392 and Electric Equipment Manufacturing Co. Ltd., Sheikhupura v. Government of the Punjab and another 1979 PLC 416 ref.

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

----Arts. 5(1), 12(1) & 42---Principles of law enunciated by the Supreme Court, (Azad Jammu and Kashmir)---Such principles were binding upon each and every organ of the State and no deviation could be made from it irrespective of the fact that the Authority was President or the Prime Minister of the State or any other State subject---No option was left with any of the authorities except to implement such principles.

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

----Art. 43(2-A)---Judges of High Court of Azad Jammu and Kashmir, appointment of---Appointment to be made on the advice of the Council and 'after consultation' with the Chief Justice of Supreme Court (Azad Jammu and Kashmir) and Chief Justice of the High Court---Difference of opinion between the Chef Justice of the High Court and the Chief Justice of the Supreme Court ('the consultees')---Rule of Primacy---Scope---To achieve the goal of mandatory, effective, meaningful, purposive and consensus-oriented consultation, the first priority was to develop the consensus between the consultees by mutual discussion of the merits and demerits of the concerned candidates, however, after making all the possible efforts for developing the consensus between the consultees if the opinion of the Chief Justice of Azad Jammu and Kashmir was not supported by the Chief Justice of the High Court, then the opinion of Chief Justice of Supreme Court (Azad Jammu and Kashmir) shall be given primacy.

Tabassum Aftab Alvi v. Raja Waseem Younis and 6 others 2020 SCR 1 and Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others PLD 2009 SC 879 ref.

Barrister Humayun Nawaz Khan, Advocate for Appellants (in Civil Appeal No. 113 of 2020).

Raja M. Hanif Khan and Bashir Ahmed Mughal, Advocates for Respondents (in Civil Appeal No. 113 of 2020).

Syed Shahid Bahar, Advocate for Appellants (in Civil Appeal No. 114 of 2020).

Raja M. Hanif Khan and Bashir Ahmed Mughal, Advocates for Respondents (in Civil Appeal No. 114 of 2020).

Sardar Shamshad Hussain Khan, Advocate for Appellants (in Civil Appeal No. 111 of 2020).

Raja M. Hanif Khan, Sardar Tahir Anwar Khan and Bashir Ahmed Mughal, Advocates for Respondents (in Civil Appeal No. 111 of 2020).

Nemo for Appellants (in Civil Appeal No. 112 of 2020).

Raja M. Hanif Khan and Bashir Ahmed Mughal, Advocates for Respondents (in Civil Appeal No. 112 of 2020).

Barrister Adnan Nawaz, Advocate for Appellants (in Civil Appeal No. 115 of 2020).

Raja M. Hanif Khan, Raja Ibrar Hussain and Bashir Ahmed Mughal, Advocates for Respondents (in Civil Appeal No. 115 of 2020).

Appellant in person (in Civil Appeal No. 116 of 2020).

Raja M. Hanif Khan and Bashir Ahmed Mughal, Advocates for Respondents (in Civil Appeal No. 116 of 2020).

Raja M. Hanif Khan and Ch. Shoukat Aziz, Advocates for Appellant (in Civil Appeal No. 484 of 2019).

Fayyaz Ahmed Janjua, Barrister Adnan Nawaz Khan, Syed Shahid Bahar and Sardar Shamshad Hussain, Advocates for Respondents (in Civil Appeal No. 484 of 2019).

2021 Y L R 991

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, C.J. and Raja Saeed Akram Khan, J

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Secretary Forests, Muzaffarabad and 2 others---Appellants

Versus

ALI UMAR and 20 others---Respondents

Civil Appeal No. 112 of 2017, decided on 7th November, 2017.\

(On Appeal from the judgment and decree of the High Court dated 10.01.2017 in Civil Appeal No. 113 of 2017).

Azad Jammu and Kashmir Regularization of Nautors and Grant of Khalsa Land Ordinance (VI of 1974)---

----S. 3---Azad Jammu and Kashmir Grant of Khalsa Waste Land as 'Shamilat-Deh' Act (I of 1966), Ss. 4 & 6---Suit for declaration and permanent injunction---Regularization of existing Nautors---Demarcation of forests for determination of Shamilat-deh areas---Khalsa Sarkar Maqbooza Mehkama Mal Areas---Scope---Plaintiffs filed suit for declaration cum perpetual injunction against Forests Department contending therein that the suit land was entered in the revenue record as crown land; that it was colonized before old settlement by their forefathers in Dogra regime which was alienated in their names through Council order in the year 1944 and that it was transferred to plaintiffs after the death of their father which was continuously under their ownership and possession---High Court found that the land in question was crown land, hence, plaintiffs could not be allowed to remain in possession thereof for indefinite period without obtaining Proprietary Rights Transfer Order; that the plaintiffs were at liberty to move to the concerned Collector for obtaining Proprietary Rights Transfer Order and that the Government/Collector could take necessary steps against the plaintiffs and not the Forests Department---Validity---Observation of the High Court to the extent that the Forests Department shall not take any step appeared to be improper and against law---Not only the Government but the Forests Department was also vested with powers relating to the Khalsa land, which was under the possession of Forests Department or was under the forests---Forests Department was also vested with the powers of demarcation under S. 4 of the Azad Jammu and Kashmir Grant of Khalsa Waste Land as 'Shamilat-Deh' Act, 1966---Imposition of prohibition from exercising the powers upon the Forests Department, being inconsistent with law and uncalled for, was set aside---Appeal was disposed of accordingly.

Azad Government and others v. Khadija Bibi and others (Civil Appeal No.88 of 2015) rel.

Muhammad Hanif Khan Minhas, Advocate for Appellants.

Sardar Pervaiz Akhtar, Ch. Shabbir Ahmed and Muhammad Maqsood Sulehria, Advocates for Respondents.

2021 Y L R 1145

[Supreme Court (AJ&K)]

Before Raja Saeed Akram Khan, ACJ and Ghulam Mustafa Mughal, J

ARSHAD ANWAR ADVOCATE---Appellant

Versus

STATE through Advocate General Azad Jammu and Kashmir and 9 others---Respondents

Criminal Appeals Nos.44 and 51 of 2019, decided on 19th October, 2020.

(On appeal from the judgment of the Shariat Appellate Bench of the High Court dated 10.10.2019 in Criminal Appeals Nos. 199 and 219 of 2017).

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

----S. 13---Penal Code (XLV of 1860), Ss. 324, 302, 337-F, 34 & 504---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah, common intention, intentional insult with intent to provoke breach of peace, possession of unlicensed arms---Appreciation of evidence---Recovery of weapon---Non-availability of report of Forensic Laboratory---Weapon not in working condition---Mitigating circumstance---Scope---Accused was alleged to have ineffectively fired at the complainant---Recovery of crime weapon was the only evidence which could play vital role in the case of accused to ascertain the true picture---Recovery of crime weapon on the pointation of the accused was made after a considerable delay i.e. on the last day of remand---Recovery witness stated that at the time of recovery, weapon was in working condition whereas Trial Court had noted that the weapon was not in working condition---Weapon recovered on the pointation of accused and the empties recovered from the spot were not even sent to the Forensic Laboratory---Strong mitigation in respect of the recovery, which in view of the role attributed to the accused was of vital importance as well as the active participation of the accused, was available in the case---Sentence of accused was reduced to the one already undergone by him---Appeal of accused was disposed of accordingly and that of complainant was dismissed.

Haji and 3 others v. The State 1976 PCr.LJ 69; Muhammad Khan and another v. The State 1999 SCMR 1220; Din Muhammad and 9 others v. Ahmad and another 2008 YLR 396; Muhammad Shah v. The State 2010 SCMR 1009; Syed Amanullah Shah v. The State 2013 YLR 110; Shaman alias Shamoo and 3 others v. The State 2013 PCr.LJ 1829; Raja Zamin Abbas and another v. Sultan Mubashar and another 2014 SCR 1678; Kabir Shah v. The State through Advocate General Khyber Pakhtunkhwa and another 2016 YLR 1291; Iftikhar Ahmed and another v. The State and another 2016 PCr.LJ 228; Sardar Khan v. The State PLD 2005 Pesh. 166; Muhammad Ashraf and 2 others v. The State 2008 YLR 1808; Shah Nawaz and another v. The State 2008 YLR 2449; Muhammad Ilyas and others v. The State 2011 SCMR 460; Ikramullah v. The State 2011 PCr.LJ 1584 and Raj Muhammad v. State and 4 others 2014 YLR 2612 ref.

(b) Criminal trial---

----Benefit of doubt---Scope---Prosecution has to stand on its own evidence and it is duty of the prosecution to prove its case beyond reasonable doubt.

(c) Criminal trial---

----Witness---Related witness---Scope---Mere relationship of witnesses with the complainant is not sufficient to discredit their testimony if otherwise such witnesses are found to be the witnesses of truth.

Raja Muhammad Hanif Khan, Advocate for Appellant (in Criminal Appeal No.44 of 2019).

Barrister Hamayun Nawaz Khan and Sardar Abdul Hameed Khan, Advocates for Respondents (in Criminal Appeal No.44 of 2019).

Raja Ayaz Ahmed, Assistant Advocate-General for the State (in Criminal Appeal No.44 of 2019).

Barrister Hamayun Nawaz Khan and Sardar Abdul Hameed Khan, Advocates for Appellant (in Criminal Appeal No.51 of 2019).

Raja Muhammad Hanif Khan, Advocate for Respondents (in Criminal Appeal No.51 of 2019).

Raja Ayaz Ahmed, Assistant Advocate-General for the State (in Criminal Appeal No.51 of 2019).

2021 Y L R 1503

[Supreme Court (AJ&K)]

Present: Raja Saeed Akram Khan, C.J. and Ghulam Mustafa Mughal, J

AYAZ HUSSAIN and another---Appellants

Versus

STATE through Advocate General of Azad Jammu and Kashmir

and others---Respondents

Civil Appeal No .203 of 2020, decided on 24th July, 2020.

(On appeal from the judgment of the High Court dated 29.4.2020 in Writ Petition No. 181 of 2019).

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

----Arts. 44 & 42---Writ jurisdiction---Scope---Quashing of FIR---Appellants claiming to be husband and wife sought quashing of FIR lodged by the father of lady under Ss.10, 11 & 19 of Offence of Zina (Enforcement of Hudood) Act, 1985 and S.14 of Offences against Property (Enforcement of Hudood) Act, 1985---High Court declined the relief on the ground that an ex-parte decree for dissolution of marriage on the basis of khula was passed by Judge Family Court, which was still intact; that the husband's application for setting aside of the decree was dismissed in default and that the High Court could not restrain the police from investigation---Validity---Decree passed by the Judge Family Court was doubtful as the same was not acknowledged by the lady and even otherwise, such decree did not operate as complete talaq, hence, was not a hurdle in reunion of the spouses---Impugned judgment was set aside, writ petition was accepted and the FIR was quashed.

Hafiz Abdul Waheed v. Mrs. Asma Jehangir and another PLD 1997 Lah. 301; Aziz-ur-Rehman v. Nasir Yousaf and others, Civil PLA No. 115 of 2018 decided on 12.04.2018; M. Shawal v. Sonia Farooq 2019 SCR 934; Shapal Anjum v. Samin Kousar 2019 SCR 226; Safeena Bibi v. Zahoor Ahmed 2006 SCR 411; M. Saleem v. M. Zaman and others 2014 SCR 809; Zahoor Ahmed v. Rukhsana Kousar and others 2000 SCMR 707; Khadim Hussain v. Abdul Basit and others 2002 MLD 1250; M. Hanif Khan v. M. Halim Khan and others 2000 PLC (C.S.) 171; Sohail Yousaf v. Yasir Riaz and others 2019 YLR 1284; Parveen Azam and others v. SSP District Mirpur and others 2015 SCR 837; Shan Muhammad v. M. Younas and others 2014 SCR 183; Dr. Ghulam Mustafa v. The State and others 2008 SCMR 76; Col. Shah Sadiq v. M. Ashiq and others 2006 SCMR 276; Haji Sardar Khalid Saleem v. M. Ashraf and others 2006 SCMR 1192; Brig. (Retd.) Imtaiz Ahmed v. Government of Pakistan and others 1994 SCMR 2142; Habib Ahmed v. M.K.G. Scott Christian and others PLD 1992 SC 353; M. Rehman v. District Police Officer and others PLD 2015 Lah. 413; Shevo v. Regional Police Officer and others PLD 2009 Kar. 24; Resident of Village Sathra v. Azad Government and others 2018 CLC Note 119, p.106; AJK Government and others v. Dr. M. Amin 2014 SCR 258; Farooq Ahmed v. Custodian and others 2018 SCR 1; Finance Department v. Ch. M. Naseer and others 2020 PLC (C.S.) Note 48, p.42; Secretary Services and others v. Bashir Mir 2015 SCR 851; Fazal Hussain v. M. Ashraf and others 2006 SCR 163 and Raja M. Hayat Khan v. Board of Revenue AJK and others 1999 YLR 147 ref.

Fazli-e-Subhan v. Mst. Sabereen and others PLD 2003 Pesh. 169; Mst. Dilshad Akhtar and others v. State and others PLD 1996 Lah. 145; Zulfiqar Ali v. Mt. Yasmeen Mukarram and another PLD 2011 Lah. 458; Attiq Ahmed Khan v. Noor-ul-Saba and another 2011 CLC 1211; M. Saleem v. M. Zaman and others 2014 SCR 809; Khadim Hussain v. Abdul Basit and others 2002 MLD 1250 and Abid Hussain Jaffri and others v. Azad Government and others 1998 PLC (C.S.) 141 rel.

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

----Art. 44---Writ jurisdiction---Scope---Quashing of FIR---First Information Report disclosing the cognizable offences cannot be quashed in exercise of writ jurisdiction.

(c) Administration of justice---

----Each and every case is to be judged in the light of its peculiar facts and circumstances.

(d) Azad Jammu and Kashmir Family Courts Act, 1993 (XI of 1994)---

----S. 5---Jurisdiction of Family Court---Declaration regarding validity of Nikahnama---Scope---No Mufti or Qazi except the court empowered under the Azad Jammu and Kashmir Family Courts Act, 1993, has jurisdiction to entertain any proceedings or declare the Nikah of the spouses to be illegal.

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

----Art. 44---Writ jurisdiction---Scope---Quashing of FIR---Courts do not intervene in the police investigation but where an FIR is registered against the spouses without due inquiry and taking notice of the facts, the Court cannot shut its eyes and a grave misuse of authority by the police can be checked and corrected in exercise of writ jurisdiction.

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

----Art. 44---Writ jurisdiction---Scope---Quashing of FIR---Rule that the High Court cannot interfere in the investigation even though if it is proved that the case is registered without lawful authority by the police by misusing its authority is not an absolute rule.

Anwar Ahmed Khan v. The State and another 1996 SCMR 24 rel.

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

----Art. 44---Writ petition---Scope---Order for detention in Dar-ul-Aman for indefinite period---Order of the High Court sending a lady in the shelter home for an indefinite period was declared by the Supreme Court to be an illegal confinement.

Safeena Bibi v. Zahoor Ahmed 2006 SCR 411 rel.

Ch. Shoukat Aziz, Advocate for Appellants.

Abdul Rasheed Abbasi and Raja Shujaat Ali Khan, Advocates for Respondents.

2021 Y L R 1857

[Supreme Court (AJ&K)]

Before Raja Saeed Akram Khan, C.J. and Ghulam Mustafa Mughal, J

Criminal Appeal No. 8 of 2020

ABDUL WAHEED KHAN---Appellant

Versus

EHTESAB BUREAU through Deputy Prosecutor, Muzaffarabad---Respondent

(On appeal from the judgment of the High Court dated 28.12.2019 in Criminal Appeal No. 366 of 2019).

Criminal Appeal No. 24 of 2020

KHURRAM SHAHZAD---Appellant

Versus

EHTESAB BUREAU through Deputy Prosecutor, Mirpur---Respondent

(On appeal from the judgment of the High Court dated 8.4.2020 in Criminal Appeal No. 43 of 2020).

Criminal Appeals Nos. 8 and 24 of 2020, decided on 11th May, 2020.

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

----S. 497---Bail---Deeper appreciation of evidence---Scope---Deeper appreciation of evidence could not be made while deciding the bail application---Court had only to make tentative assessment of the record collected by the Investigating Agency to form an opinion about the prima-facie involvement of an accused or otherwise.

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

----S. 497---Penal Code (XLV of 1860), Ss. 467, 468, 470 & 109---Prevention of Corruption Act (II of 1947), Ss. 5(1)d & 5(2)---Azad Jammu and Kashmir Ehtesab Bureau Act (I of 2001 ), Ss.9, 10 & 11---Forgery, forgery for the purpose of cheating, forged document, abetment, criminal breach of trust by public servant, corruption and corrupt practice---Bail, refusal of---In the present case, the accused Bank-employees committed fraud with the Bank consumers and account holders, which fact had been disowned by the guarantors---Allegation of defence that not a single guarantor or witness had been examined by the prosecution or was mentioned in the interim reference, was negated by the prosecution and had referred number of account holders and their statements, who negated that they had not stood guarantor or given any guarantee for any loan against their accounts---Question of time barred investigation had neither been raised before the Trial Court nor before the High Court---Said question had been raised for the first time before Supreme Court, thus, the Supreme Court was unable to take up that matter for the first time---Even otherwise, the reference had been filed before the competent Court and the accused, herein, were at liberty to raise all those points before the competent forum---Accused being involved in the fraud and had shaken the confidence of the account holders and at that stage on the basis of collected material, prima-facie, it could not be said that they were not linked with the commission of offence with which they had been charged---Accused were not found entitled to the concession of bail, however after recording of some evidence they might file bail application on fresh grounds, if any---Appeal was dismissed, in circumstances.

Kh. Ansar Ahmed, Advocate for Appellant (in Criminal Appeal No.8 of 2020).

Sardar Amjad Aslam Khan, Chief Prosecutor for Respondent (in Criminal Appeal No.8 of 2020).

Sagheer Javed, Advocate for Appellant (in Criminal Appeal No. 24 of 2020).

Sardar Amjad Aslam Khan, Chief Prosecutor for Respondent (in Criminal Appeal No. 24 of 2020).

2021 Y L R 2138

[Supreme Court (AJ&K)]

Before Raja Saeed Akram Khan and Ghulam Mustafa Mughal, JJ

NUSRAT JAN---Appellant

Versus

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

Criminal Appeal No. 46 of 2019, decided on 30th March, 2020.

(On appeal from the judgment of the Shariat Appellate Bench of the High Court dated 7.11.2018 in Criminal Appeal No. 41 of 2016).

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Scope---Accused was charged that she with the abetment of co-accused by administering poison caused the murder of her husband/brother of complainant---Motive behind the incident was illicit relationship of the accused with the co-accused---Illicit relationship of the accused with the co-accused had been sufficiently established on the basis of the statement of son of deceased, who had stated in clear terms that the accused used to meet the co-accused for bringing the amulets (Tawizat) and the accused had also exchanged their cellular numbers---Said witness had further stated that on the day of incident the mother gave some medicine to the father as a result whereof, the vomiting started to his father, whereupon, he demanded water but the mother did not allow to give him the same on the pretext that some medicines had been given to him and due to that, the father died early in the morning---Other witness who was also son of the deceased had also corroborated the statement of his brother---Said statements had been made by the sons against the convict-mother, hence, the truthfulness of the statement of said witnesses could not be doubted---Other witnesses had also fully supported the prosecution story---Post-mortem report as well as the report of Chemical Examiner also corroborated the incident---Circumstances proved through evidence that the poison was purchased by the co-accused and was duly administered by the accused, who was in a position to administer the same as the deceased and the accused being spouses were living together in a house, thus, it could not be said that the accused was not in a position to administer the poison to her husband in order to get rid of him and to fulfil her plans of marriage with her paramour---Such offences were committed secretly by the culprits without leaving any sign on the spot---Circumstances established that the prosecution had proved its case against the accused, however, after considering the entire evidence and circumstances of the case, while maintaining the conviction, the sentence awarded to the accused by the Trial Court was reduced to the sentence already undergone---Appeal was disposed of accordingly.

Bhupinder Singh v. State of Punjab 1989 MLD 1762 rel.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Confession, recording of---Scope---Accused was charged that she with the abetment of co-accused by administering poison caused the murder of her husband/brother of complainant---Prosecution had produced the statement of accused, recorded under S.164, Cr.P.C, by the Judicial Magistrate, wherein, she had admitted the manner of occurrence and illicit relation with the co-accused and administering the poison to the deceased---Said statement had not been denied by her at the time of her statement recorded under S.265-D, Cr.P.C rather she had admitted the same---Accused though had not owned the statement recorded under S.164, Cr.P.C., while making the statement under S.342, Cr.P.C, but said denial was not sufficient for discarding the confessional statement which had been owned by her at the time of framing of the charge---Statement was reliable and all the codal provisions had been complied with by the Judicial Magistrate before recording the statement---Fact that accused applied to the Civil Judge for recording of her statement in the terms that she wanted to marry the co-accused, was also an admitted fact and the same had not been denied by the accused---Such conduct of the accused proved the motive for taking life of the husband---Such was the strong corroborative piece of evidence which could not be ignored lightly---Circumstances established that the prosecution had proved its case against the accused, however, after considering the entire evidence and circumstances of the case, while maintaining the conviction, the sentence awarded to the accused by the Trial Court was reduced to the sentence already undergone---Appeal was disposed of accordingly.

Gulzaman v. Sherin Bahadar and others 2010 YLR 3019 ref.

(c) Criminal trial---

----Circumstantial evidence---Scope---Circumstantial evidence was to be so interconnected that it formed such a continuous chain that its one end touches the dead body and the other with the neck of the accused by excluding all the hypothesis of innocence.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances--- Scope---Accused was charged that she with the abetment of co-accused by administering poison, caused the murder of her husband/brother of complainant---In the present case, the delay in lodging FIR had properly been explained and keeping in view the circumstances of the case, it could not be said that the prosecution had consumed time for concocting any case against the accused or the co-accused, however, said factor could be counted towards the quantum of punishment---Moreover, there were certain mitigating circumstances which had persuaded to reduce the sentence awarded to the accused, thus, after considering the entire evidence and circumstances of the case, while maintaining the conviction, High Court reduced the sentence awarded to the accused by the Trial Court to the sentence already undergone---Appeal was disposed of accordingly.

Sardar M. Rebaz Khan, Advocate for Appellant.

Zaffar Iqbal Azad, Advocate for the Complainant.

Raja Inamullah Khan, Advocate-General for the State.

2021 Y L R 2337

[Supreme Court (AJ&K)]

Before Raja Saeed Akram Khan, A.C.J. and Ghulam Mustafa Mughal, J

Civil Appeal No. 215 of 2020

MINISTRY OF KASHMIR AFFAIRS AND GILGIT BALTISTAN, GOVERNMENT OF PAKISTAN through Secretary and another---Appellants

Versus

Messrs ZK ASSOCIATES (PVT.) LIMITED through authorized Representative and 5 others---Respondents

(On appeal from the judgment of the High Court, dated 6.5.2020, in Writ Petition No. 442 of 2020).

Civil Appeal No. 216 of 2020

PROJECT DIRECTOR, PROJECT MANAGEMENT UNIT, MUZAFFARABAD---Appellant

Versus

Messrs ZK ASSOCIATES (PVT.) LIMITED through authorized Representative and 6 others---Respondents

(On appeal from the judgment of the High Court, dated 6.5.2020, in Writ Petition No. 442 of 2020).

Civil Appeals Nos. 215 and 216 of 2020, decided on 20th August, 2020.

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

----Art. 42---Bidding process---Scope---Project Director, Project Management Unit for Azad Jammu and Kashmir Legislative Assembly Complex invited bids for the construction of Legislative Assembly Complex from eligible bidders---Respondent-firm offered its bid as joint venture and participated in the bidding process, however, its bid was declared non-responsive by the competent authority and the contract was awarded to another firm---Respondent assailed the said order before the High Court through a writ petition which was accepted and a direction was issued to the Project Director to issue the letter of acceptance to the respondent being the lowest successful bidder---Contention of appellants was that, in fact, one of the joint venture partners did not fulfil the criteria of eligibility for the project because one of its conditions was that the bidder should have completed at least one project of similar nature, within the minimum cost of 1800 millions Pakistan rupees, therefore, in order to overcome the discrepancy it associated the other partner but the joint venture partners failed to furnish the bid security in the name of joint venture---Validity---Perusal of the instructions to bidders revealed that it was essential that the bid security should be in the name of the joint venture and if the same was not as such, the principal or the employer had every right to reject the tender---Principal in such circumstances had competently rejected the bid by holding the same as non-responsive and such a rejection could not have been challenged---Appeal was accepted and the order passed by High Court was set aside, in circumstances.

Fawwad and Fareen Enterprises Ltd. v. Director of Industries, Government of Sindh, Karachi and others PLD 1983 SC 268 rel.

Moin-ud-Din v. Negotiating Committee for Disinvestment of AKMIDC Units, Muzaffarabad and 8 others PLD 1987 SC (AJ&K) 99 ref.

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

----Arts. 42 & 44--- Territorial jurisdiction of High Court---Scope---Project Director, Project Management Unit for Azad Jammu and Kashmir Legislative Assembly Complex invited bids for the construction of Legislative Assembly Complex from eligible bidders---Respondent-firm offered its bid as joint venture and participated in the bidding process, however, its bid was declared non-responsive by the competent authority and the contract was awarded to another firm---Respondent-firm assailed the action before the High Court through a writ petition which was accepted and a direction was issued to the Project Director, Project Management Unit, to issue the letter of acceptance to the respondent being the lowest successful bidder---Contention of appellants was that under Art. 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, a direction could be issued against a person performing functions in connection with the affairs of Azad Jammu and Kashmir or the local authority, whereas, in the case in hand, the direction was issued to the Project Director and Bid Evaluation Committee, who were performing functions in the affairs of Federation of Pakistan, hence the impugned judgment was not sustainable---Validity---Although the amount for construction of Legislative Assembly Complex was donated by the Government of Pakistan through Ministry of Kashmir Affairs and Gilgit Baltistan, but the whole tendering process including evaluation of the bids submitted by the participants was conducted in Azad Jammu and Kashmir, therefore, it could not be said that the cause of action had not arisen within the territorial jurisdiction of Azad Jammu and Kashmir and if any violation was made in the tendering process, the same could be questioned before the Azad Jammu and Kashmir High Court notwithstanding the fact that the matter could be taken to any other High Court in Pakistan---Writ petition was declared to be maintainable in law, however, the petition was dismissed on merits---Appeal was accepted.

Lt. Gen. (R) Salahuddin Tirmizi v. Election Commission of Pakistan PLD 2008 SC 735 and Sandalbar Enterprises (Pvt.) Ltd. v. Central Board of Revenue and others PLD 1997 SC 334 ref.

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

----Art. 44---Writ petition---Territorial jurisdiction---Scope---Order passed by the Federation or the authorities even located beyond the territory of Azad Jammu and Kashmir which perform functions in connection with the affairs of the Azad Government of the State of Jammu and Kashmir or Council are amenable to the jurisdiction of the High Court of Azad Jammu and Kashmir.

Malik Muhammad Miskeen and 2 others v. Government of Pakistan through Secretary Kashmir Affairs and Northern Affairs Division Islamabad and 10 others PLD 1993 AJ&K 1 and Federation of Pakistan v. Malik Muhammad Miskeen and others [PLD 1995 SC (AJ&K) 1 rel.

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

----Art. 114---Estoppel---Scope---If a party against whom the acquiescence and estoppel is pleaded was aware about the dents pointed out by the other party and even then it participated in the process without raising any objection then in case of adverse order, such party cannot take inconsistent position.

Sajid Ali Bhatti, Additional Attorney General and Bashir Ahmed Mughal, Advocate for Appellants (in Civil Appeal No. 215 of 2020).

Raja Amjad Ali Khan, Advocate for Respondent (in Civil Appeal No. 215 of 2020).

Syed Ashfaq Kazmi, Advocate for Profoma Respondent No.4 (in Civil Appeal No. 215 of 2020).

Barrister Humayun Nawaz Khan, Advocate for Appellant (in Civil Appeal No. 216 of 2020).

Raja Amjad Ali Khan, Advocate for Respondents (in Civil Appeal No. 216 of 2020).