YLR 2022 Judgments - Pakistan Legal Archive

Courts in this Volume

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

Federal Shariat Court

YLR 2022 FEDERAL SHARIAT COURT 138 #

2022 Y L R 138

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah, J

SARDAR AHMED---Appellant

Versus

ADIL and another---Respondents

Criminal Revision No. 2-I of 2019, decided on 31st January, 2020.

Criminal Procedure Code (V of 1898)---

----Ss.516-A & 517---Order for custody (Superdari) and disposal of property pending trial---Order for disposal of property regarding which offence committed---Applicant, by way of revision application, had impugned order of Trial Court, whereby application filed by one of the accused under S. 517, Cr.P.C., for return of looted property, the subject matter of case, outcome of FIR registered under Ss. 302, 324, P.P.C. and under S.17(4), Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was allowed---Validity---Peculiar facts and circumstances of the case transpired that looted property had been recovered from the house of accused under proper memo of recovery---Acquittal of accused---Claim of accused could not be decided by the criminal court being counter claim as the question of title, if any, should be left to be decided by the ordinary civil court of competent jurisdiction---Keeping in view the peculiar facts and circumstances of the present case, the case property which had already been given to the complainant on superdari under the order of the Trial Court would continue to be held by the complainant subject to proof of either party's title thereto in a civil court of competent jurisdiction---Resultantly, revision petition was disposed of by setting aside impugned order.

Central Co-operative Bank Ltd., Sargodha v. Ahmed Bakhsh PLD 1970 SC 343; Saeed Ahmad v. The State and another 1971 SCMR 774; Jalal Khan v. Sardar and another 1973 PCr.LJ 1; Muthiah Muthirian v. Vairaperumal Muthirian AIR 1954 Madras 214; Arjun Padhy and others v. State of Orissa and another AIR 1965 Orissa 198; Tariq Naveed Ahmed v. Allah Ditta and 2 another 2004 PCr.LJ 1169; Bakht Ali and another v. The State 1981 PCr.LJ 1269; Matwalli alias Mutalli v. The State 1990 Pr.LJ 731; Imdad Ali v. The State 1990 PCr.LJ 1661 and Sajjad Hussain v. S.P. City, Multan and 3 others 2005 MLD 1843 ref.

Central Co-operative Bank Ltd, Sargodha v. Ahrnad Bakhsh PLD 1970 SC 343; Saeed Ahmad v. The State and another 1971 SCMR 774; Jalal Khan v. Sardar and another 1973 PCr.LJ 1; Muthiah Muthirian v. Vairaperumal Muthirian AIR 1954 Madras 214; Arjun Padhy and others v. State of Orissa and another AIR 1965 Orissa 198; Tariq Naveed Ahmed v. Allah Ditta and 2 another 2004 PCr.LJ 1169; Matwalli alias Mutalli v. The State 1990 PCr.LJ 731 and Imdad Ali v. The State 1990 PCr.LJ 1661 rel.

Hafiz Waqar Ahmed Awan for Petitioner.

S. Shakil Khan Gillani for Respondent.

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

YLR 2022 FEDERAL SHARIAT COURT 162 #

2022 Y L R 162

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah, J

GHULAM QADIR---Petitioner

Versus

The STATE---Respondent

Criminal Revision No. 6-K of 2019, decided on 3rd October, 2019.

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

----Art. 3---Criminal Procedure Code (V of 1898), Ss. 221 & 225---Recovery of liquor---Appreciation of evidence---Defective charge---Effect---Prosecution case was that four litres desi wine was recovered from the possession of accused---Legislature had provided an elaborate procedure for framing the charge under S.221, Cr.P.C.---Charge should contain all material particulars as to the time, place and specific kind of the alleged offence, the manner in which offence was committed and particulars of the accused to afford him an opportunity to explain the matter with which he was charged---Framing of charge was not a routine matter or formality---Charge framed by the Trial Court, in the case, did not reflect the place of recovery of the contraband intoxicant from the possession of accused---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Art. 3---Recovery of liquor---Appreciation of evidence---Benefit of doubt---Prosecution case was that four litres desi wine was recovered from the possession of accused---Perusal of prosecution evidence transpired that complainant in his examination-in-chief stated about recovery of a plastic jerrycan containing desi wine from the petitioner, without disclosing the quantity of contraband liquor---Complainant had further stated that one Pawa in glass bottle from jerrycan was separated as sample for Chemical Examiner but again he did not mention the quantity separated from total recovered intoxicant---Report of Chemical Examiner reflected that the sample of recovered narcotic was received by the Office of Chemical Examiner by hand of Police Constable---Said Police Constable had not been examined by the prosecution---Nothing was available on record to show that where the contraband intoxicant was lying for 23 days, which was in clear violation of R.6 of Sindh Prohibition Rules, 1979---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Ikramullah and others v. The State 2015 SCMR 1002 and The State v. Imam Bakhsh and others 2018 SCMR 2039 rel.

----Art. 3---Recovery of liquor---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Effect---Prosecution case was that four litres desi wine was recovered from the possession of accused---Cumulative assessment of prosecution evidence transpired that Police Constable/witness stated that five litres wine in jerrycan was recovered from the accused, however, ASI/witness stated in examination-in-chief that the jerrycan was containing one litre of desi wine and one sealed quarter of wine---In reply to cross question he had stated that SHO informed him the colour of jerrycan---Said witness further stated that he handed over all case property to the SHO of concerned police station---Complainant/SHO of police station being star witness of the prosecution without disclosing quantity of recovered contraband intoxicant admitted in cross-examination that he did not remember that in the mashirnama the jerrycan was of green colour---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Art. 3---Recovery of liquor---Appreciation of evidence---Benefit of doubt---Report of Chemical Examiner---Scope---Prosecution case was that four litres desi wine was recovered from the possession of accused--- Chemical Examiner's Report reflected that the parcel contained one white nip glass bottle covered with black tin lid, labelled as "superior whisky", fully filled with colour fluid with smell of alcohol---One hundred ml fluid from the said bottle was consumed in analysis---Chemical Examiner had also not mentioned the quantity containing in the sample of contraband intoxicant received by him---Chemical Examiner had also not mentioned about return of remaining case property to the Investigating Agency---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Art. 3---Criminal Procedure Code (V of 1898), S.342---Recovery of liquor---Appreciation of evidence---Benefit of doubt--- Examination of accused---Scope---Prosecution case was that four litres desi wine was recovered from the possession of accused---Record showed that in his statement recorded under S.342, Cr.P.C., by pleading his innocence, the accused stated that complainant SHO was inimical to his relative ASI and foisted Desi Sharab upon him---Accused had not been confronted to the Chemical Examiner's Report, therefore, the chemical report was out of consideration---Appeal against conviction was allowed, in circumstances.

Muhammad Razakue v. The State 2006 PCr.LJ 149; Muhammad Shah v. The State 2010 SCMR 1009; Sherdil v. The State 1999 SCMR 697 and Qaddan and others v. The State 2017 SCMR 148 rel.

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

----Art. 3---Criminal Procedure Code (V of 1898), S.103---Recovery of liquor---Appreciation of evidence---Benefit of doubt---Non-association of private witness---Effect---Prosecution case was that four litres desi wine was recovered from the possession of accused---Accused was arrested from a thickly populated area and it was a case of prior information but police did not associate any independent witness of the locality to witness recovery proceeding---Both the marginal witnesses of memo of recovery and arrest were Police Officials and sub-ordinate of the complainant---Prosecution witnesses had contradicted each other on material points but the same were not considered by the Trial Court---Conviction and sentence recorded by the Trial Court, confirmed by the Appellate Court was unjust, improper and result of mis-reading/non-reading of evidence---Appeal against conviction was allowed, in circumstances.

(g) Criminal trial---

----Benefit of doubt---Principle---If any single or slightest doubt is created, benefit of the same would go to the accused not as a concession but as a matter of right and it would be sufficient to disbelieve the prosecution story, regardless of the fact whether the accused has taken any defence plea or not.

Farhad Ali Abro for Petitioner.

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

YLR 2022 FEDERAL SHARIAT COURT 198 #

2022 Y L R 198

[Federal Shariat Court]

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

Khadim Hussain M. Shaikh, JJ

MUNAWAR and another---Appellants

Versus

The STATE---Respondent

Jail Criminal Appeal No.3/K and Criminal Murder Reference No.1/K of 2020, decided on 30th April, 2021.

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

----Ss. 302(b), 392 & 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, common intention, haraabah---Appreciation of evidence---Identification parade---Scope---Accused were charged that while committing robbery they murdered the father of complainant by firing---Record showed that the role attributed to the accused by the witnesses during identification parade was contradictory and conflicting---Said witnesses not only did not support each other on material particulars rather were at variance and the said statements were contradictory to their statements recorded by the court---Apparent contradictions qua the role attributed to the accused during the course of identification parade and the improvements made in the court were sufficient to reduce the worth of the identification parade rendering their evidence inadmissible, as if one witness was believed that belied other witness and vise versa---Whole process of identification parade became suspicious and doubtful for another reason as well because one witness stated that he had gone to the Court of Magistrate for identification parade at about 8:30 to 09:00 A.M. and remained in the Court for about 10/20 minutes whereas according to Judicial Magistrate, Identification Parade proceedings started at 11:00 A.M., so looking the identification parade from whatever angle and perspective it did not meet the required conditions of admissibility---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.

Akhtar Ali and others v. The State 2008 SCMR 6 rel.

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

----Art. 22--- Identification parade---Scope---Where the accused was not previously known to witnesses, without the description given by the witnesses, the identification of the accused before the court or during identification parade lost legal weight and significance.

Sabir Ali alias Fauji v. The State 2011 SCMR 563 rel.

----Ss. 302(b), 392 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, robbery, common intention, haraabah---Appreciation of evidence---Confessional statement of accused---Scope---Accused were charged that while committing robbery they murdered the father of complainant by firing---One of the accused persons got recorded his confessional statement, however, the statement lost its worth, significance and evidentiary value for various reasons; firstly, because it was delayed, as the accused was arrested on 11.03.2014 and his statement was recorded on 20.03.2014 and secondly, the statement was not true according to prosecution case that accused snatched the purse, extended threat, took the pistol on the head of mother of complainant but his statement was absolutely silent regarding those facts so the element of truthfulness of statement was missing---No independent corroboration of the statement was found---Statement of the witness was exculpatory, except mere presence no role he assigned to himself rather exonerated himself---Accused, after recording statement was handed over to police who had produced him before the Court---In the given circumstances, legally such confessional statement could not be used against co-convict without independent corroboration---Confession of co-accused was the sole piece of evidence against him which was not legally sufficient to saddle him with the commission of alleged crime---If that statement was discarded and taken out of consideration then the entire prosecution case was bound to collapse---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), 392 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Delay of about seven days in lodging the FIR---Effect---Qatl-i-amd, robbery, common intention, haraabah---Appreciation of evidence---Accused were charged that while committing robbery they murdered the father of complainant by firing---First Information Report of the incident was lodged after about nine days---Only explanation available in the FIR was that after funeral of the deceased, with consultation of the family members the FIR had been lodged---Said excuse for lodging the FIR, even if accepted, might have culminated in lodging of FIR just after funeral of the deceased but the delay so occurred could not be justified---Delay in lodging of the FIR without plausible explanation carried an adverse impact on the prosecution case and militated against the bona fide of the prosecution---Appeal against conviction was allowed, in circumstances.

Akhtar Ali and others v. The State 2008 SCMR 6 rel.

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

----Ss. 302(b), 392 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Qatl-i-amd, robbery, common intention, haraabah---Appreciation of evidence---Delay of about eight days in recording the statement of witnesses by the police---Scope---Accused were charged that while committing robbery they murdered the father of complainant by firing---Witnesses had stated before the Court that their statements under S.161, Cr.P.C. were recorded, after the delay of about eight days which was fatal for prosecution---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 392 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, robbery, common intention, haraabah---Appreciation of evidence---Preparation of danistnama and mashirnama of dead body and mashirnama of surzamine prior to the lodging of FIR---Scope---Accused were charged that while committing robbery they murdered the father of complainant by firing---Record showed that danistnama and mashirnama of dead body and mashirnama of surzamine respectively, which were prepared prior to lodging the FIR had lost their significance---Appeal against conviction was allowed, in circumstances.

Abdul Batin and others v. The State 2008 PCr.LJ 1237 rel.

Mrs. Aftab Bano for Appellants.

M. Javed K.K. for Appellant No.2.

Jamshed Ahmed Khokhar for the Complainant.

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

YLR 2022 FEDERAL SHARIAT COURT 396 #

2022 Y L R 396

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah, J

MANO---Petitioner

Versus

The STATE---Respondent

Criminal Revision No. 5-K of 2019, decided on 9th January, 2020.

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

----Art. 4---Recovery of liquor---Appreciation of evidence---Benefit of doubt---Prosecution case was that ten litres of liquor was recovered from the possession of accused, however, during interrogation, accused led the police party to his house and produced four jerricans, each containing thirty litres of unprepared wine---Case of the prosecution hinged on evidence of two Police Officials, complainant and recovery witness---Complainant as well as Investigation Officer admitted in cross-examination that he had not sealed the unprepared wine, neither he mentioned the colour of jerrican in the memo of arrest or in FIR---Complainant had also stated that the house of accused was katcha hut and one room and some houses were also adjacent to the house of accused and house of accused was surrounded by a hedge and no door was affixed in the house of accused---Four jerricans each containing 30 litres of unprepared wine were recovered from the house of accused without any manufacturing equipment, etc.---Examination-in-chief of complainant did not transpire that the recovered intoxicant was ever produced before the court---Alleged by the witnesses that the wine was locally prepared in the house of accused but no equipment used in preparation of contraband liquor was found in the house---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.

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

----Art. 4---Criminal Procedure Code (V of 1898), S. 103---Recovery of liquor---Appreciation of evidence---Benefit of doubt---Search to be made in presence of witnesses--- Scope---Prosecution case was that ten litres of liquor was recovered from the possession of accused, however, during interrogation, accused led the police party to his house and produced four jerricans, each containing thirty litres of unprepared wine---Nothing on record that respectable inhabitants of the vicinity were called to act as a witness of alleged recovery made from the house of the accused in non-compliance of mandatory provision of S. 103, Cr.P.C.---Non-association of two respectable inhabitants of the locality during search of the house, without obtaining warrant under Art.22 of the Prohibition of (Enforcement of Hadd) Order, 1979 demonstrated illegality and a glaring misuse of power---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.

----Art. 4--- Recovery of liquor---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Prosecution case was that ten litres of liquor was recovered from the possession of accused, however, during interrogation, accused led the police party to his house and produced four jerricans, each containing thirty litres of unprepared wine---Record showed that the mashir of memo of recovery contradicted the complainant to the place of recovery by stating in cross-examination that the house of accused was consisting of one katcha room---Admittedly, at the time of alleged recovery of ten litres contraband liquor made from accused at thoroughfare, memo of recovery was not prepared, as the only memo of recovery reflected place of wardat to be house of accused---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.

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

----Art. 4---Recovery of liquor---Appreciation of evidence---Benefit of doubt---Chemical analysis report---Scope---Prosecution case was that ten litres of liquor was recovered from the possession of accused, however, during interrogation, accused led the police party to his house and produced four jerricans, each containing thirty litres of unprepared wine---Allegedly, one pint was taken from recovered contraband intoxicant, measuring 130 litres---Case of prosecution was shrouded in mystery that from which jerrican one pint was taken---Report of Chemical Examiner placed on the record reflected receipt of one white glass bottle with two seals without showing the actual quantity---Chemical Examiner Report further reflected that 100 ml fluid was consumed from bottle in analysis, remaining case property had been returned by mentioning that contents of the bottle contained 25% V/V 43% PS as Ethyl Alcohol---Since the exact quantity of sample had also not been shown either by the complainant/Investigation Officer or by the Chemical Examiner nor the pint had been defined in the statute---Chemical Examiner Report did not reflect that to whom the contraband intoxicant containing in the samples was returned and that when the chemical examination of the said intoxicant was conducted by the Chemical Examiner---Not clear that after making the alleged recovery with whom the contraband intoxicant was laying for about six days---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.

(e) Criminal trial---

----Benefit of doubt---Principle---If any single or slightest doubt is created, benefit of same must go to the accused and it would be sufficient to disbelieve the prosecution story, regardless of fact whether the accused had taken any defence plea or not.

OM Parkash H. Karmani for Petitioner.

Ms. Seema Zaidi, Deputy Prosecutor General, Sindh for the State.

YLR 2022 FEDERAL SHARIAT COURT 459 #

2022 Y L R 459

[Federal Shariat Court]

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

Mst. YASMEEN---Appellant

Versus

MUHAMMAD ISHFAQ and 4 others---Respondents

Criminal Appeal No. 18-I of 2019, decided on 30th January, 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--- Language and contents of judgment---Scope---Accused was charged for levelling allegation containing imputation of zina against the complainant---Record showed that the adopted procedure by the Trial Court run contrary to law and normal procedure as evidence without recording examination-in-chief on oath could not be considered as evidence---Impugned judgment had been rendered on the strength of defective evidence---Points for determination had not been formulated in terms of S.367, Cr.P.C.---As a general rule of Qanun-e-Shahadat, 1984, only such statement was legal and admissible which was given during the course of judicial proceedings and was on oath and was taken by a person authorized under the law to take down the evidence and that it was made in the presence of the adverse party, giving the right to the adverse party to cross-examine the statement of such deponent---Admittedly, the statements of three witnesses including complainant were not recorded in accordance with law---Such statements providing opportunity of cross-examination at a subsequent stage, could not have been appreciated either way on account of being violative of mandatory procedure---Section 367, Cr.P.C. indicated that a judgment must contain point or points for determination, the decision thereon and reasons for the decisions---Said section of the Code casted duty upon courts to formulate/point for determination and the court while writing judgment had to ponder over all possible situation and probabilities for drawing just decision---Section 367, Cr.P.C. was not permissive but imperative, thus, it was the duty of the judge to ensure not only that he dispensed justice but the justice also seemed to have been done---Provision of said section was mandatory and intended to constitute a substance as distinguished from mere form of judgment---Mis-appreciation of evidence leading towards illegality, gross irregularity, perversity or infirmity or finding of the Trial Court based on surmises, conjectures, shocking or artificial, warranted interference by the Appellate Court as contemplated by S.417, Cr.P.C.---Appeal was allowed, in circumstances, by setting aside impugned judgment and the case was remitted to the Trial Court for de novo trial after affording fair opportunities to the parties to lead their evidence in accordance with law.

Sahab Khan v. The State 1997 SCMR 871 and Muddassar v. The State 1996 SCMR 3 rel.

(b) Administration of justice---

----Undeniably, any legal defect in the proceedings on account of an act of the court shall not prejudice any of the parties.

Shah Nawaz Asim for Appellant.

Sardar Muhammad Ashfaq for Reespondents.

Walayat Khan, Assistant Advocate General, Khyber Palchtunkhwa for the State.

YLR 2022 FEDERAL SHARIAT COURT 522 #

2022 Y L R 522

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan and Shaukat Ali Rakhshani, JJ

KHALID MEHMOOD---Appellant

Versus

The STATE and 2 others---Respondents

Criminal Appeal No. 8/I of 2019, decided on 25th October, 2019.

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

----S. 302(b)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, haraabah--- Appreciation of evidence---Dying declaration---Scope---Accused was charged for committing murder of the deceased/complainant while snatching money---Admittedly, the statement of the deceased then injured incorporated in the FIR was recorded in the hospital but neither his statement was attested by the concerned Medical Officer to verify that the deceased then injured was medically fit and was in his senses to make such statement nor had been verified and signed by any other Police Official or any private witness---Statement of deceased then injured was accepted as a whole truth without opportunity of cross-examination on the hypothesis that a person on the death bed could not lie---Present case was distinguishable, for the reason that the deceased then injured did not die within a short spell of time rather he remained alive for 39 days---In such scenario, it was obligation upon the Prosecution, in circumstances, was obliged to have proved on record through medical evidence that during such period of treatment he was able and fit to make statement---Investigating Officer in his examination-in-chief stated that he had been visiting the injured admitted in hospital but deceased then alive was unable to give his statement and that he only stated that he had been fired at by accused just for snatching money---If the statement of Investigating Officer was believed to be true and correct then question mounted that if he was not able to make statement during his treatment in a hospital wherein he remained for 39 days, how could he make statement on the day of incident---In absence of such explanation, the need of medical evidence arose to prove such factum, which was missing---Prosecution had to establish through cogent evidence that the dying man was in full sense, conscious, alert to surroundings, fully orientated to time, space and able to make such statement, whereof a fitness certificate about the medical condition of declarant was must, which had not been obtained and brought forward on record---Such declaration of deceased could not be considered as a dying declaration---Circumstances established that the prosecution had failed to bring home the charge against the accused---Appeal against conviction was allowed, in circumstances.

Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; 2011 SCMR 646; 2010 SCMR 1009; 2000 SCMR 785; PLD 1996 SC 67 and Rehmat Alias Kaku v. The State and another 2017 YLR Note 221 ref.

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

----Art. 46---Dying declaration---Scope---Dying declaration, being a very weak type of evidence, required strong, independent and reliable evidence for the sake of safe administration of justice---Relying upon such statement alone will be un-safe.

----S. 302(b)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, haraabah---Appreciation of evidence---Contradictions in the statements of witnesses---Scope---Accused was charged for committing murder of the deceased/complainant while snatching money---Ocular account had been furnished by mother of deceased and another witness---Statements of said two witnesses had been contradicted by Investigating Officer who testified that the accused was arrested on the next day about 04:15 p.m. from his room---No clothes of the accused were taken into possession to corroborate the statement of witness, who stated that the clothes of the culprit, white in colour were smeared with the blood of his son, which was intriguing---Statement as dying declaration of deceased was incorporated in the shape of mursaila on the basis whereof FIR was lodged, which had been found to be inconsistent to the depositions of said two witnesses, rather contrary regarding said dying declaration, arrest of the accused on the spot and then handing over to the police in the hospital---Circumstances established that the prosecution had failed to bring home the charge against the accused---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, haraabah---Appreciation of evidence--- Withholding material evidence---Scope---Accused was charged for committing murder of the deceased/ complainant while snatching money---One of the material witnesses who along with other witness brought injured/ deceased then alive, to hospital was not produced and abandoned for being unnecessary without assigning any reason---Said fact inferred to believe as provided under Art. 129(g) of the Qanun-e-Shahadat, 1984, that had he been produced before the Court he would have not supported the prosecution version---Circumstances established that the prosecution had failed to bring home the charge against the accused---Appeal against conviction was allowed, in circumstances.

Lal Khan v. The State 2006 SCMR 1846 rel.

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

----S. 302(b)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, haraabah---Appreciation of evidence---Confessional statement of accused--- Infirmities--- Accused was charged for committing murder of the deceased/ complainant while snatching money---Record showed that in cross-examination Judicial Magistrate admitted not to have asked any question other than mentioned in the questionnaire---After recording confessional statement, Judicial Magistrate committed the accused to judicial custody through Naib Court--- Judicial Magistrate admitted that the confessional statement was not written by him by his hand but was scribed by the steno of the Court on his dictation---Admittedly, Recording Magistrate had provided only one opportunity with a single warning for reflection---Usually, the Naib Court was in the uniform, thus shifting of the confessor through a Naib Court also offended the pre-caution---By not providing two opportunities for reflection with intervals intentionally violated the directions rendered by the Supreme Court---Presence of Court Official and writing the confession by him without offering explanation and such fact not contained in the certificate made the entire proceedings of confessional statement un-voluntary and erroneous, making the same inadmissible---Circumstances established that the prosecution had failed to bring home the charge against the accused---Appeal against conviction was allowed, in circumstances.

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

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

----S. 302(b)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, haraabah---Appreciation of evidence---Recovery of weapon of offence from the possession of accused---Reliance---Scope---Accused was charged for committing murder of the deceased/ complainant while snatching money---Pistol being crime weapon of the murder of the deceased was recovered from a room being in possession of the accused---Arrest of the accused on the said date and the recovery made at the same moment from the room of the accused was diverse to the testimony of alleged eye-witnesses that the culprit, who committed murder was apprehended at the spot by the deceased himself, which was handed over to Police Official in the hospital and that the police praised the deceased for doing so bravely---Since the recovery of pistols had not been effected in consequence of disclosure and the police had raided the room on prior information, therefore, it was incumbent upon Police Officials to have had associated compulsorily private witnesses from the locality to become marginal witness of recovery, which offended provisions of S.103, Cr.P.C.---Prosecution had also procured the Forensic Science Laboratory Report to establish that an empty recovered from the crime scene had been fired by the pistol recovered from accused from his room beneath the pillow---One of the fascinating statements which had come on record was that Investigating Officer testified that, while inspection of the crime scene, he secured an empty, giving fresh smell of its discharge, which was taken into possession through recovery memo---Occurrence having taken place at about 07:00 p.m., then how come would it be possible, till next day, the empty giving fresh smell of its discharge---Record reflected that the recovery of pistols were made and sent on the same day to Forensic Science Laboratory, but the same were received after four days; whereof no explanation had been offered to justify late receipt of the aforesaid weapons, which made the Forensic Science Laboratory Report unworthy of reliance---Recovery having been considered to be highly doubtful and thus discarded as such the Forensic Science Laboratory Report could not be considered as helpful to the case of prosecution for being redundant---Circumstances established that the prosecution had failed to bring home the charge against the accused---Appeal against conviction was allowed, in circumstances.

Muhammad Azam v. The State PLD 1996 SC 67 rel.

Ghulam Younas Khan Tanoli for Appellant.

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

YLR 2022 FEDERAL SHARIAT COURT 611 #

2022 Y L R 611

[Federal Shariat Court]

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

REHMAT ALI and 2 others---Appellants

Versus

The STATE---Respondent

Jail Criminal Appeal No. 4-K of 2018, decided on 5th July, 2019.

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

----Ss. 302, 109 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17---Qatl-i-amd, abetment, common intention, haraabah---Appreciation of evidence---Sentence, reduction in--- Ocular account---Scope---Accused were charged for snatching mobile phones, gold ornaments and cash from the house of the complainant, on resistance, one of the accused fired with pistol, which hit the brother of complainant who died---Ocular account of the prosecution case hinged upon deposition of four prosecution witnesses---Complainant, real brother of deceased while corroborating the contents of the FIR stated the whole story of the case---Evidence of complainant, in lengthy protracted cross-examination, had not been shaken by the defence---Eye-witness had fully supported the complainant---Said witness was also subjected to lengthy cross-examination but no specific or notable contradiction had brought by the defence in their favour---Third eye-witness of the prosecution while deposing similar facts of the occurrence identified the accused persons present in court to be the same who committed house trespass in their dwelling and committed qatl of deceased and looted the property from their house---Said witness was also cross-examined at length, spreading on eight pages but no specific contradiction had brought on record by the defence---Record showed that it had become amply clear that the accused persons in furtherance of their common intention trespassed forcibly in the house of deceased and in furtherance of their intention, one of the accused fired pistol shot at brother of complainant, who died---Presence of remaining three accused in the dwelling of complainant had also been established from the evidence and identification parade was held before the Civil Judge, hence all accused persons were liable for the offence committed by them jointly---Presence of the accused at the time of occurrence with firearm weapon had not been specifically denied and they were identified by the eye-witnesses, therefore, all accused were responsible for the act committed by any of them---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt, however, the Trial Court while awarding sentence under S. 544(A), Cr.P.C., in case of default of payment of compensation, had exceeded its jurisdiction by awarding two years' imprisonment, whereas the maximum period provided under S.544-A(2), Cr.P.C., was six months---Said period was modified with sentence of six months in case of non-realization of compensation amount---Appeal against conviction was dismissed with said modification.

Mushtaque alias Shaman v. The State PLD 1995 SC 46 and Roshan and others v. The State PLD 1976 SC 557 ref.

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

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

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

Mrs. Saleha Naeem Ghazala for Appellants.

Ms. Sobia Mir for Appellant No.1.

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

YLR 2022 FEDERAL SHARIAT COURT 710 #

2022 Y L R 710

[Federal Shariat Court]

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

Khadim Hussain M. Shaikh, JJ

ALI MUHAMMAD and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 6-Q, 7-Q and Criminal Murder Reference No. 1-I of 2019, decided on 30th April, 2021.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Accused were charged for committing murder of the two brothers of the complainant by firing---At the time of arrest, the accused persons were in possession of the firearm/weapons used in the commission of the offence, so much so that in order to avoid their arrest, they made every effort including firing upon Levies and endeavoured to escape from the crime scene---In consequence thereof, the Levies authorities in response to deter the culprits had to make firing upon the culprits---Consequently, the culprits were arrested where encounter took place---Crime was committed by the accused in broad daylight in presence of eyewitnesses and they were arrested almost red handed---Statements of all the witnesses specifically the statements of all the relevant witnesses matched with one another and clearly supported the version of the prosecution beyond any doubt---Recoveries of empties of T.T. pistol and recovery of empties of 9.MM and recovery of 25 empties of Kalashnikov and the positive report of Forensic Science Laboratory regarding them were also strong corroborative pieces of evidence to prove the case of prosecution---Extra-judicial confession of the accused persons to the extent of those recoveries fell within the parameter of admissibility under Art. 40 of the Qanun-e-Shahadat, 1984---Chain of events as recorded by the prosecution through its witnesses was flawless and natural, leaving no place of doubt---Circumstances established that the judgment of Trial Court was well-reasoned and did not need any intervention---Conviction recorded and sentence of death awarded to the accused by the Trial Court was maintained, in circumstances---Appeals against conviction were dismissed, in circumstances.

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

Hamidullah Achakzai for Appellant No.1.

Arslan Khan for Appellant No.2.

Ameer Hamza Mengal, Deputy Prosecutor General, Balochistan for the State.

YLR 2022 FEDERAL SHARIAT COURT 754 #

2022 Y L R 754

[Federal Shariat Court]

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

MUHAMMAD FAZIL---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeal No. 1-I of 2021, decided on 30th April, 2021.

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

----Ss. 302 & 324---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qanun-e-Shahadat (10 of 1984), Art.46---Qatl-i-amd, attempt to commit qatl-i-amd, haraabah--- Appreciation of evidence---Dying declaration---Scope---Accused was charged for committing murder of the complainant during snatching cash---Record showed that the whole case of prosecution was mainly relying upon the dying declaration of the deceased/complainant recorded in the hospital on his death bed in serious injured condition---Statement of the deceased/complainant firstly recorded by SI/SHO and subsequently in presence of independent private witnesses was strong piece of admissible evidence within the meaning of Art. 46 of the Qanun-e-Shahadat, 1984---Said statement of victim was corroborated by the statements of two witnesses, who had lastly seen the complainant/deceased in the company of the accused, when they all had dinner together a night before the occurrence of crime---Objection raised by the defence about the manner in which the dying declaration was made was also irrelevant because there was no special mode of recording dying declaration---Viewed from whichever angle, statement of the deceased/complainant could be fully treated as "Dying Declaration"---Deceased/complainant had given a very simple and straightforward version of the incident and he had no motive to falsely implicate the accused---Story of deceased/complainant was supported by the medical evidence inasmuch as danda blows inflicted on his head and his right leg, which were noticed during medical examination conducted by Medical Officer---Dying declaration was recorded in presence of witnesses, hence, left no space of doubt---Contents of the dying declaration were also supported by the statements of witnesses---Both witnesses were private independent witnesses---Witnesses were last seen witnesses of company of the deceased/complainant and the accused---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Niaz-ud-Din and another v. The State 2011 SCMR 725; Niaz-ud-Din and another v. The State and another 2011 SCMR 725; Mushtaq Ahmad and another v. The State 1973 PCr.LJ 1075; Sirajuddin v. The State 1990 SCMR 588; Niaz Ahmad v. The State PLD 2003 SC 635; Mst. Amina and another v. The State 2013 PCr.LJ 962; Hazoor Bux and 5 others v. S.I.O. Police Station Khanpur Mahar and 3 others 2011 PCr.LJ 1454 and Shahban Bheri v. The State 2014 MLD 663 rel.

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

----Ss. 302 & 324---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, attempt to commit qatl-i-amd, haraabah---Appreciation of evidence---Recovery of weapon of offence and other material---Scope---Accused was charged for committing murder of the complainant during snatching cash---Blood stained danda was recovered from the room in which the crime was committed and the blood stained chaddar of the deceased from the same room---Report of Forensic Science Laboratory was in affirmative regarding the blood stain on the danda allegedly used in hitting the fatal blow upon the deceased and the green coloured chaddar of the deceased stained with his blood---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Riaz Hussain Azam for Appellant.

Ameer Hamza Mengal, Deputy Prosecutor General, Balochistan for the State.

Respondent No.2 in person.

YLR 2022 FEDERAL SHARIAT COURT 861 #

2022 Y L R 861

[Federal Shariat Court]

Before Dr. Syed Muhammad Anwer and Khadim Hussain M. Shaikh, JJ

Mst. NABEELA---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 10-P of 2020, decided on 5th May, 2021.

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

----S. 5---Qazf of zina liable to hadd---Appreciation of evidence---Appeal against acquittal---Delay in lodging the complaint--- Scope--- Appellant filed complaint with the stance that her father filed an application to the police for conducting inquiry against respondent, who levelled false accusation against his daughter/appellant of committing zina/ fornication with a person, later on he failed to prove the said allegation, hence the complaint was filed---Record showed that the delay in filing the complaint against the accused in the court of law was considered fatal by the Trial Court in the case---Said approach of the Trial Court considering the delay in filing a complaint in Qazf cases fatal, like any other criminal trial, 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 interlinked---Delay in filing a complaint was not only natural but permissible in Islamic Law in cases of Qazf---Circumstances established that the Trial Court had failed to make point or points for determination while passing the impugned judgment---Appeal was allowed by setting aside the impugned judgment and matter was remanded for de novo trial as per relevant law of Qazf.

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

----S. 5---Qazf of zina liable to hadd---Appreciation of evidence--- Appeal against acquittal---Appellant filed complaint with the stance that her father filed an application to the police for conducting inquiry against respondent, who levelled false accusation against his daughter/appellant of committing zina/ fornication with a person, later on he failed to prove the said allegation, hence the complaint was filed---Complainant had irrefutably fulfilled the requirement of being muhsan within the meaning of S. 5---Complainant presented her medical certificate proving her virginity---Although, it was not at all a necessary requirement for filing a complaint under S.203-B, Cr.P.C., only the statement of the complainant was sufficient because the presumption of chastity and piousness was attached to every adult woman and man in a Muslim society---Fundamental reason under Islamic law was that nobody is allowed to level any allegation directly or indirectly about the chastity of any woman or man without providing any proof, that too with the required level of standard mentioned in S. 6 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979---Circumstances established that the Trial Court had failed to make point or points for determination while passing the impugned judgment---Appeal was allowed by setting aside the impugned judgment and matter was remanded for de novo trial as per relevant law of Qazf.

----S. 5---Qazf of zina liable to hadd---Appreciation of evidence---Appeal against acquittal---Mode of punishment---Scope---Appellant filed complaint with the stance that her father filed an application to the police for conducting inquiry against respondent, who levelled false accusation against his daughter/ appellant of committing zina/ fornication with a person, later on he failed to prove the said allegation, hence the complaint was filed---If the Trial Court concluded that in case of Qazf the accused was not liable to hadd punishment but otherwise he was guilty of committing the crime of Qazf or levelling false accusation of fornication then the accused would be punished under S.496-C of P.P.C.---In that case the accused wanted to tender his unconditional apology, whether his apology was acceptable or not depended upon its acceptance by the victim/ complainant of the case and after that upon the Trial Court---Matter of acceptance of apology would also be decided by the Trial Court during de novo trial---According to the overwhelming majority of prominent Muslim jurists, including some Hanafis, the offence of Qazf was a crime where the right of individual is predominated---Pardon might be granted to the accused by the victim / complainant---Circumstances established that the Trial Court had failed to make point or points for determination while passing the impugned judgment---Appeal was allowed by setting aside the impugned judgment and matter was remanded for de novo trial as per relevant law of Qazf.

2015 PCr.LJ 305; 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; Sahab Khan and 4 others v. The State and others 1997 SCMR 871 and Fiaz Ahmad and another v. The State and another PLD 2018 FSC 6 rel.

Gul Muhammad Khan for Appellant.

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

YLR 2022 FEDERAL SHARIAT COURT 967 #

2022 Y L R 967

[Federal Shariat Court]

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

MUHAMMAD and another---Appellants

Versus

The STATE---Respondent

Jail Criminal Appeal No.19/K of 2018, decided on 6th September, 2019.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of six hours in lodging FIR---Scope---Accused was charged for committing murder of the nephew of complainant---First Information Report was lodged with the delay of six hours without explanation---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.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Dishonest improvements made by eye-witness--- Scope--- Accused was charged for committing murder of the nephew of complainant---Motive behind the occurrence was stated to be that 10/11 days prior to the occurrence, there was an altercation between deceased and accused, who extended threats of dire consequences---Record showed that the statement of eye-witness recorded before the Court was not reconcilable with her statement recorded under S.164, Cr.P.C.---Said eye-witness stated before the Court that they woke up on hearing of voice and noise of people and found the four culprits in the house who were armed and co-accused made a straight fire upon her husband and he fell down---Witnesses woke up upon hearing of noise and voice of people and the murder was committed inside the room, whereas in the statement under S.164, Cr.P.C., witness stated that they heard the noise of fire and woke up and her husband opened the door and went outside the room and the accused made a straight fire on him and he fell down, which they observed from window---Witnesses woke up upon fire report; and incident took place outside the room---Accused in the court statement were alleged to be armed but without describing the nature and kind of weapon, whereas in the statement under S.164, Cr.P.C. eye-witness described the kind of weapon and also attributed holding of two boxes by accused---Said witness, in the Court statement stated that after half an hour police came and they narrated the incident to the police; they made statement to police and described the incident, however, statement under S.164 Cr.P.C. witness stated that due to fear they did not disclose the incident to anybody and after arrest of the accused they came out of fear and narrated the same facts to police---Witnesses, for the first time made statement under S.161, Cr.P.C. to police after arrest of accused and his nomination---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.

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay in recording the statement of witnesses under S.164, Cr.P.C.---Scope---Accused was charged for committing murder of the nephew of complainant---Witnesses made statement against the accused before Judicial Magistrate after lapse of more than 25 days, it was far from comprehension, beyond imagination and contrary to human behaviour and natural conduct that the wife and two sisters while watching murder of husband/brother despite knowing culprits would not disclose the name and identity of culprits on lame excuse and pretext of fear or extension of threat---High Court observed either witnesses had not seen the culprits or they did not know and identify the culprits, in any case, they were not telling the truth---Either of the statements was not believable, as the acceptance of one was bound to culminate in rejection of the other---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.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Contradictions in statements of witnesses---Scope---Accused was charged for committing murder of the nephew of complainant---Fact was un-ascertainable whether the victim sustained injury inside the room or out of the room---Three eye-witnesses stated that after sustaining injury the victim fell down on the ground, if it was so, then the site plan did not show whether he fell nor any blood had been secured showing the place where the victim fell down on the ground---Complainant and two other witnesses stated and the mashirnama showed that the victim was lying on the bed, but nobody stated that after sustaining injury and falling on the ground, either the victim himself moved to the bed and whether he could move or was removed by whom, when and under what condition---Overall perusal of the statements of witnesses left no room for doubt that complainant was not an eye-witness of the incident but the information conveyed to the police rested on the information passed on to him in the presence of two witnesses by eye-witnesses and clearly it was stated by them that the assailants were un-identified---To that extent, neither complainant was declared hostile nor cross-examined by the prosecution---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art.19---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Res gestae---Scope---Accused was charged for committing murder of the nephew of complainant---Record showed that the prosecution had produced impartial and uninterested witness who, though, was not an eye-witness, yet his statement was relevant under Art. 19 of the Qanun-e-Shahadat, 1984, on the principle of 'res gestae', as soon after the incident they were attracted on the hue and cries of the inmates of the house and on their arrival, they were informed that unidentified persons had committed murder of deceased with a request to procure attendance of complainant---Inmates of the house did not express any apprehension or fear or extension of threat by the assailants asking them not to disclose their names and identification---Said witness was not declared hostile---Statement of said witness alone was sufficient to dismantle the entire edifice of the prosecution case introduced by eye-witnesses---Appeal against conviction was allowed, in circumstances.

Mahendrapal and another v. The State AIR 1955 Allahabad 328 rel.

(f) Criminal trial---

----Maxim: "Falsus in uno, falsus in omnibus"---Applicability---If a witness was found lying in respect of a particular matter his/her rest of statement regarding the same incident would not be believed, as criminal jurisprudence rested on the principle of falsus in uno, falsus in omnibus.

Notice to Police Constable Khizar Hayat son of Hadait Ullah on account of his false statement PLD 2019 SC 527 rel.

(g) 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 the nephew of complainant---Record showed that the investigation was very poor, inefficient, incompetent rather dishonest---No site plan, no sketch, merely some observations and that too had been drawn at the instance of informant, who was not an eye-witness of the incident---No blood-stained earth was collected from the venue on the pretext of flooring of the room---Witnesses claimed to have seen the accused firing through windows, the observation did not contain any statement as to whether it was practicable to watch; and were the accused visible---One of the witnesses claimed to have seen the accused through bulb-light but no observation regarding source of light nor the bulb was secured into possession---None of the said inherent defects and lapses that created serious doubt regarding veracity of the statements and the manner of the commission of offence prevailed upon the Trial Court---Non-production of Investigating Officer was also prejudicial to their interest---Prosecution sought exemption on the ground that the Investigating Officer was paralyzed, whereas Official Witness stated that he had been retired---Non-examination of Investigating Officer on such flimsy and contradictory ground was a serious irregularity---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.

Muhammad Yameen v. The State 1987 PCr.LJ 1576 ; Muhammad Razzaq v. The State 1996 PCr.LJ 616 and Muhammad Sharif and another v. The State 1972 PCr.LJ 1259 rel.

Syed Shahid Mushtaq for Appellants.

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

YLR 2022 FEDERAL SHARIAT COURT 1097 #

2022 Y L R 1097

[Federal Shariat Court]

Before Dr. Syed Muhammad Anwer and Khadim Hussain M. Shaikh, JJ

IRFAN ALI and others---Appellants

Versus

The STATE---Respondent

Jail Criminal Appeals Nos. 4/I and 6/I of 2020, decided on 11th June, 2021.

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

----Ss. 302(b), 337-A(i), 337-F(vi) & 337-L(2)--- Qatl-i-amd, Shajjah-i-khafifah, ghayr - jaifah - munaqqillah, causing hurt---Appreciation of evidence---Delay of more than eleven days in lodging the FIR---Scope---Accused were charged for committing murder of the deceased and causing injuries to the brother of complainant---Record showed that the incident had taken place during the night falling between 09.07.2017 and 10.07.2017 and whereas the FIR was lodged on 21.07.2017---No proper explanation had been offered by the prosecution for such an inordinate delay of more than eleven days in lodgement of the FIR---Delay in lodging FIR had been viewed with grave suspicion, thus, it required careful scrutiny when number of accused was large, when such delay had resulted in embellishment, which was a creation of afterthought, assuming importance going to the extent of being fatal to the prosecution case in absence of convincing explanation, which prima facie pointed out to fabrication of the prosecution story---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.

Akhtar Ali and others v. The State 2008 SCMR 6; Ayub Masih v. The State PLD 2002 SC 1038 and Muhammad Asif v. The State 2017 SCMR 486 rel.

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

----Ss. 302(b), 337-A(i), 337-F(vi) & 337-L(2)---Criminal Procedure Code (V of 1898), S. 161---Qatl-i-amd, shajjah-i-khafifah, ghayr - jaifah - munaqqillah, causing hurt---Appreciation of evidence---Delay of more than twenty one days in recording the statement of witness---Scope---Accused were charged for committing murder of the deceased and causing injuries to the brother of complainant---Statement under S.161, Cr.P.C., of injured witness, who per prosecution, was the sole eye-witness of the occurrence, was recorded after more than twenty one days of incident and ten days of the FIR without any plausible explanation thereof---In the wake of the said unexplained inordinate delay in recording statement under S.161, Cr.P.C. of the alleged solitary eye-witness, the possibility of false implication of the accused persons after consultations and deliberations could not be ruled out and that being significant could not be lost sight of---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) Criminal trial---

----Evidence--- Standard of proof---Suspicion---Suspicion howsoever grave or strong, could not be a proper substitute for the standard of proof required in a criminal case, which was to be proved by the prosecution against the accused beyond any shadow of doubt.

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

----Ss. 302(b), 337-A(i), 337-F(vi) & 337-L(2)--- Qatl-i-amd, shajjah-i-khafifah, ghayr - jaifah - munaqqillah, causing hurt---Appreciation of evidence---Contradictions in the statement of witnesses--- Scope--- Accused were charged for committing murder of the deceased and causing injuries to the brother of complainant---Injured witness had stated that he had lastly seen deceased going with two accused---Injured did not claim to have seen any person committing murder of deceased---Said witness stated that three accused stood with him and one of them caused blow of hard and blunt substance on his head, due to which he become unconscious and gained conscious after about fifteen days at the Hospital---Injured witness stated in cross-examination, that no accused caused any injury to the deceased in his presence---Allegedly, after receiving blow on his head, witness remained conscious but was unable to speak---Complainant, who was brother of the injured witness, stated that his brother became conscious after ten to fifteen days at the Hospital---Medical Officer had stated that the injured was conscious when brought at hospital---Even otherwise nothing had been brought on the record by the prosecution to show that injured was ever admitted in the Hospital---Statement of Medical Officer, Radiologist Report, Provisional Medico-Legal Certificate and final Medico-Legal Certificate of injured, produced by Medical Officer, did not reveal about referral of injured and/or his admission and treatment even for a single day in the Hospital---Injured had left the Hospital on the following day against the medical advice, which also adversely reflected upon the prosecution 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

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

----Ss. 302(b), 337-A(i), 337-F(vi) & 337-L(2)--- Qatl-i-amd, shajjah-i-khafifah, ghayr - jaifah - munaqqillah, causing hurt---Appreciation of evidence---Ocular account and medical evidence---Conflictions--- Scope--- Accused were charged for committing murder of the deceased and causing injuries to the brother of complainant---Record showed that the injured claimed that he was caused one blow of hard and blunt substance on back side of his head by one of the accused out of three accused---However, Medical Officer, who initially examined injured, found four injuries on his person, out of which one injury on his chin was caused by sharp cutting substance, while remaining three injuries were caused by hard and blunt substance---Provisional Medico-Legal Certificate showing four injuries on the person of injured was issued by Medical Officer, whereas in the final Medico-Legal Certificate five injuries were shown on the person of injured, thereby fifth injury was added in the final Medico-Legal Certificate without any explanation regarding the earlier omission, if any--- Medical evidence was, therefore, in direct conflict with the ocular account---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. 302(b), 337-A(i), 337-F(vi) & 337-L(2)--- Qatl-i-amd, shajjah-i-khafifah, ghayr - jaifah - munaqqillah, causing hurt---Appreciation of evidence---Delay of 35 to 44 hours in conducting the post-mortem of deceased---Scope---Accused were charged for committing murder of the deceased and causing injuries to the brother of complainant---No reasonable explanation had been offered by the prosecution for delay of 35 to 44 hours in conducting post-mortem of deceased---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)---

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

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

----S. 164---Confessional statement---Scope---Confessional statement should not only be true, voluntary and believable, but it should be without fear, favour or any inducement and it must be consistent and coherent to the facts and the circumstances of the prosecution case---Statement of accused becomes confession only when it is recorded in compliance of provisions of Ss.164 & 364 Cr.P.C and necessary precautions and formalities are observed.

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

----S. 164--- Conviction--- Confessional statement---Scope---Conviction can be based on sole confessional statement of accused provided the same is voluntary and true and necessary precautions and formalities are adhered to.

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

----S. 164--- Confessional statement---Delay in recording confessional statement---Effect---Mere delay in recording confession, in principle, was not fatal to the prosecution when the court satisfied that the same was true and voluntary--- If there were circumstances which cast shadow of doubt on its genuineness then it should be excluded from consideration---Long delay in recording judicial confession would be fatal.

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

----Ss. 302(b), 337-A(i), 337-F(vi) & 337-L(2)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, shajjah-i-khafifah, ghayr - jaifah - munaqqillah, causing hurt---Appreciation of evidence---Confessional statement, recording of---Infirmities---Accused were charged for committing murder of the deceased and causing injuries to the brother of complainant---Alleged confessional statements of the accused would reveal that they were not only vague in nature, lacking in material particulars relating to the alleged incident and self destructive and contradictory to the prosecution case, but were also not in conformity with the requirement of law and rules meant for recording of the confessional statement of an accused---Question as to why they were confessing their guilt for commission of the alleged offence was not asked from any of the accused and the ages of the accused persons were also not mentioned in the alleged confessional statements, which was even admitted by Judicial Magistrate--- Apparently, the Judicial Magistrate did not record the alleged confessional statements of the accused persons in accordance with the High Court (Lahore) Rules and Orders---Under the circumstances, the alleged confessional statements of the accused persons besides being involuntary, untrue and unbelievable were also not in accordance with the law and rules and thus were of no help to the prosecution and were liable to be excluded from consideration---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.

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

----Ss. 302(b), 337-A(i), 337-F(vi) & 337-L(2)--- Qatl-i-amd, shajjah-i-khafifah, ghayr - jaifah - munaqqillah, causing hurt---Appreciation of evidence---Non-conducting the identification parade---Effect---Accused were charged for committing murder of the deceased and causing injuries to the brother of complainant---Accused persons were not known to the solitary eye-witness/injured---Investigating Officer had also deposed that accused were not known to the injured and relatives of the deceased---Under the given circumstances, identification of the accused through injured witness was essential, but no such identification parade was held which had also created doubt in the prosecution case---Further added that Investigating Officer in his cross-examination had admitted that accused were not known to the injured and relatives of the deceased and disclosed the accused as their real culprits for registration of FIR against them and then they lodged the FIR as told by them---In such view of the matter, the defence plea about the implication of the accused persons in the case by the police at the instance of an influential person due to their enmity with him carried weight---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.

(o) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance creating reasonable doubt in the prudent mind about the guilt of the accused is available, benefit thereof will be extended to the accused not as a matter of grace or concession, but as a matter of right.

Muhammad Mansha v. The State 2018 SCMR 772; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Mrs. Aftab Bano for Appellants.

Hussain Bux Saryo for the Complainant/Respondent.

Ms. Seema Zaidi, Deputy Prosecutor General, Sindh for the State.

YLR 2022 FEDERAL SHARIAT COURT 1158 #

2022 Y L R 1158

[Federal Shariat Court]

Before Muhammad Noor Meskanzai, C.J. Khadim Hussain M. Shaikh, J

AZMAT KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 8-k of 2020, decided on 11th June, 2021.

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

----S. 17(4)---Haraabah---Appreciation of evidence---Accused were charged that they entered into the shop, snatched repeater, cash and four mobiles from the complainant, meanwhile brother of complainant entered into the shop followed by a Police Official, the perpetrators opened direct fires upon the complainant, due to which, brother of complainant, his servant and Police Official died---From perusal of the impugned judgment it would be seen that the Trial Court had rendered the finding of guilt of the accused holding that the prosecution had successfully proved its case against the accused beyond reasonable doubt by adducing convincing evidence for committing murders of three deceased during robbery---On the one hand the Trial Court had held that the requirements of S.7 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, for awarding conviction to accused under "Hadd" were missing, on the other the Trial Court had convicted the accused for an offence punishable under S.17(4) Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and sentenced him to suffer life imprisonment as Ta'zir---Although sub-section (4) of S.17 of the Ordinance only provided death sentence as "Hadd" for an adult guilty of Haraabah in course of which he committed murder and it did not provide any other sentence---Said case was involving horrific crime of brutal murders of three innocent persons committed by the culprits by indiscriminate firing at them with weapons during the course of robbery in the shop of deceased located in heart of City---Federal Shariat Court observed that approach of the Court, in such like cases, should be dynamic and pragmatic in approaching true facts of the case and drawing correct and rational inference and conclusion while deciding such type of cases and not static, as inflicting conviction and imposing sentence was not a mechanical exercise, but it was onerous responsibility to inflict fair, reasonable and adequate sentence, commensurating with gravity and or severity of crime, involving conscious application of mind and it was duty of a Judge to ensure not only that he dispensed justice, but what was equally of vital importance, that justice also seemed to have been done---Patently the trial Judge was not alive to the law and he without applying his conscious judicious mind had awarded sentence of life imprisonment as Ta'zir under S. 17(4) of the Ordinance to the accused and that too by holding that the requirements of S.7 of the Ordinance for awarding conviction to the accused under "Hadd" were missing---Despite the fact that S.17(4) of the Ordinance did not provide any other sentence except the death sentence as "Hadd", Trial Court had also not specified in the impugned judgment the reasons and or mitigating circumstances for awarding lesser punishment of imprisonment of life as mandated by the provisions of S.367(5) of the Code, which legally he was not competent to do so and that being completely in negation of the mandate of the law, having been impliedly prohibited, could not be approved---Impugned judgment, which was violative of the mandatory provisions of the law and procedure, suffering from incurable defects, was not sustainable in law---Appeal was allowed by setting aside impugned judgment and remanded the case to the Trial Court for re-writing of the judgment by adhering to the mandatory provisions of law and by applying conscious judicious mind and affording opportunity of hearing to the parties.

Muhammad Ismail v. State 2017 SCMR 713 rel.

Ali Ahmed alias Zaman Khan Patoli for Appellant.

Ali Asghar Buriro along with Complainant for the Complainant.

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

YLR 2022 FEDERAL SHARIAT COURT 1252 #

2022 Y L R 1252

[Federal Shariat Court]

Before Muhammad Noor Meskanzai, C.J.

KEWAL---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeals Nos. 4/K of 2021, No.6/K of 2017 and Criminal Appeal No.23/K of 2018, decided on 4th June, 2021.

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

----S. 17---Penal Code (XLV of 1860), S.395---Haraabah---Dacoity--Appreciation of evidence---Benefit of doubt---Delayed FIR---Contradictory evidence---Falsus in uno falsus in omnibus---Scope---Accused was booked as preparator for commission of an offence under S. 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979---FIR was delayed for which there was no explanation, whatsoever---Initially the complainant had not proposed to visit the police station rather had approached Nek Mards of the area and subsequently, he had filed application before Justice of Peace---No evidence was available to prove the fact that the complainant had approached the Nek Mards and he was advised not to lodge the FIR---In the absence of such evidence the inference could not be ruled out that the delayed FIR was lodged after consultation and deliberation just to concoct and fabricate a story and rope males and females in the case---Prosecution witnesses had contradicted each other on material particulars---Evidence on record was misread, misconstrued, mis-constructed and the facts were mis-appreciated which had resulted in grave miscarriage of justice---Trial Court had acquitted one co-accused and the other was acquitted by the Federal Shariat Court---In such view of the matter, the conclusions drawn by the Trial Court were not sustainable as the law of the land was falsus in uno falsus in omnibus---Appeal against conviction was accepted and the accused was acquitted of the charge.

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

----Ss. 412 & 561-A---Appeal---Dismissal of appeal for non-appearance of accused---Restoration of appeal---Scope---Appeal of the accused was dismissed due to his non-appearance---Accused, after being arrested, filed another appeal---Second appeal was not competent; firstly, because the order passed by the Court though not a judgment on merits but still occupied the field; secondly, Court could not hear appeal against its own order/judgment; thirdly, appeal was hopelessly barred by time---Since the accused, after obtaining bail had remained fugitive of law, had not surrendered rather was got arrested and produced before the Court, so the delay which was willful, intentional and inordinate could not be ignored nor was condonable---Counsel of the accused requested the Court to treat the second appeal as an application under S. 561-A, Cr.P.C. for condonation of delay---Application was accepted, order for dismissal of first appeal for non-appearance was recalled and the same was resurrected.

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

----S. 410---Appeal---Remand---Scope---Where a legal lacuna had crept into the judgment in as much as S. 395, P.P.C., provided minimum sentence of four years for a convict but the Trial Court had awarded sentence less than the minimum prescribed sentence provided under the law, the request of Prosecutor for remand of case was declined declaring the same to be not a viable option as the prosecution had failed to prove its case beyond reasonable doubt.

Qazi Nisar Ahmed for Appellant.

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

YLR 2022 FEDERAL SHARIAT COURT 1519 #

2022 Y L R 1519

[Federal Shariat Court]

Before Dr. Syed Muhammad Anwer and Khadim Hussain M. Shaikh, JJ

GHULAM SARWAR---Appellant

Versus

KHUDA BUX and 9 others---Respondents

Criminal Appeal No. 3-K of 2019, decided on 24th December, 2021.

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

Ghulam Nabi v. Ikram alias Kama and others 2020 SCMR 477; Haji Paio Khan v. Sher Biaz and others 2009 SCMR 803 and M.B. Abbasi and another v. The State 2009 SCMR 808 ref.

Akhtar Ali and others v. The State 2008 SCMR 6; Ayub Masih v. The State PLD 2002 SC 1038 and Muhammad Asif v. The State 2017 SCMR 486 rel.

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

----Ss. 302, 364, 337-F(i), 337-H(2), 506(2), 147, 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(3)--- Qatl-i-amd, kidnapping or abduction in order to murder, ghayr-jaifah-damiyah, rash and negligent act, rioting, rioting armed with deadly weapon, unlawful assembly, haraabah---Appreciation of evidence---Appeal against acquittal---Contradictions in statements of witnesses---Scope---Accused were charged for assaulting on the complainant party, kidnapping its one member and later on committing his murder---Witness had stated that on the instigation, accused persons made straight fires at his father, who after sustaining firearm injures fell down on the ground and when he rushed towards his father, one of the accused gave him blunt side hatchet below, fracturing his left arm and thereafter other three accused dealt lathi blows on back of his chest---Whereas complainant and other witnesses had not stated a single word about receiving injuries by son of deceased at the hands of accused/ respondents or about the alleged firing by accused at deceased or even about the instigation by any accused---Undisputedly, there was no medical evidence to substantiate the version of the alleged injured about receiving injuries by him and his having been examined and treated by the Medical Officer on the alleged directions, passed by the Judicial Magistrate when he was produced before him for the purpose of remand as claimed by him nor mashirnama of alleged injuries of injured was shown to have been prepared or produced in evidence---Circumstances established that the finding of acquittal, rendered by the Trial Court was neither arbitrary nor was capricious---Appeal was dismissed accordingly.

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

----Ss. 302, 364, 337-F(i), 337-H(2), 506(2), 147, 148 & 149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(3)--- Qatl-i-amd, kidnapping or abduction in order to murder, ghayr-jaifah-damiyah, rash and negligent act, rioting, rioting armed with deadly weapon, unlawful assembly, haraabah---Appreciation of evidence---Appeal against acquittal---Dishonest improvements made by witnesses---Scope---Accused were charged for assaulting on the complainant party, kidnapping its one member and later on committing his murder---Allegedly complainant and mashirs identified the dead body of the deceased---Investigating Officer stated that he collected blood stained earth sealed it in a box there and then prepared Lash Chakas Form, Danistnama and memo of inspection of dead body in presence of mashirs, but in the cross-examination he had stated that he gave ring to the complainant, who alongwith mashirs reached there---According to mashir, who happened to be the real brother of deceased, he and co-mashir firstly reached at police station wherefrom they together with the police including Investigating Officer proceeded and went to the place of vardat in police mobile---Mashir stated that he and co-mashir were sitting on the back seat of the police mobile while Investigating Officer was sitting on the front seat of the police mobile---At that time except mashir and co-mashir no other private person was present in the police mobile---Complainant did not state about his and mashirs identifying the dead body of deceased, but instead he stated that on receiving information through his peasant/Hari on cell phone he along with his uncle mashir in his Jeep went to the pointed place where dead body of deceased was alleged to be lying where they did not find the dead body of deceased---Complainant stated that, the persons available there informed them that the police had already shifted dead body to Hospital and then he accompanying mashirs and his driver came to the Hospital where they came to know that the proceeding of post-mortem of deceased was in process---Such dishonest and deliberate improvements made by the witnesses during the trial rendered the prosecution case highly doubtful---Circumstances established that the finding of acquittal, rendered by the Trial Court was neither arbitrary nor was capricious---Appeal was dismissed accordingly.

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

(f) Appeal against acquittal---

----Judgment of acquittal---Interference---Double presumption of innocence---Scope---Accused is presumed to be innocent and if after trial, accused is acquitted, he earned double presumption of innocence, which would remain attached with the judgment of acquittal and heavy onus is on the prosecution to rebut the said presumption---Such acquittal judgment could not be interfered with unless it is proved that same was arbitrary, shocking, capricious, fanciful and on perusal of the evidence no other decision could be given except that the accused is guilty, and there has been complete misreading of evidence leading to miscarriage of justice.

Muhammad Shafi v. Muhammad Raza and another 2008 SCMR 329; State/ Government of Sindh through Advocate General, Sindh, Karachi v. Sobharo 1993 SCMR 585 and Yar Muhammad and 3 others v. The State 1992 SCMR 96 rel.

Syed Tariq Ahmed Shah for Appellant.

Abdul Rasheed Rajar for Respondents.

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

YLR 2022 FEDERAL SHARIAT COURT 1589 #

2022 Y L R 1589

[Federal Shariat Court]

Before Khadim Hussain M. Shaikh, J

SADAM HUSSAIN and another---Petitioners

Versus

The STATE---Respondent

Criminal Revision Petition No. 01-K of 2021, decided on 28th March, 2022.

Prohibition (Enforcement of Hadd) Order (IV of 1979)---

----Ss. 3 & 4---Recovery and transportation of liquor---Appreciation of evidence---Benefit of doubt---Improvements in statements---Accused persons were convicted and sentenced to two years with fine as wine bottles 286 in number were allegedly recovered from vehicle in which they were present---Validity---Material and glaring contradictions, infirmities, omissions and admissions adverse to prosecution case and dishonest and deliberate improvements in statements of prosecution witnesses during trial, had gone to the root of the case, rendering it doubtful---Such infirmities were not attended to by Trial Court while conviction and sentence to accused persons---Trial Court was obliged to take into consideration material placed before it for arriving at the conclusion as to whether a fact was proved or not---Proof of a fact depended upon probability of its having existed---Lower Appellate Court was Court of reappraisal of evidence, and Court without considering such aspects of case and appreciating evidence in its true perspective, dismissed criminal appeals filed by accused persons against their conviction and sentence awarded to them by Trial Court---High Court set aside conviction and sentence as it suffered from mis-reading and non-reading of evidence and acquitted accused persons of the charge---Revision was allowed in circumstances.

Ghulam Mustafa alias Mushtaq Ali v. The State 2013 PCr.LJ 860; Nazeer and another v. The State 2014 PCr.LJ 1358; Sadam Hussain v. The State 2018 MLD 1025; The State through Advocate-General, Khyber Pakhtunkhwa v. Muhammad Shabran alias Shada and another 2020 YLR 2639; Tulsi v. The State 2020 MLD 89; Wahab Ali and another v. The State 2010 PCr.LJ 157; Ikramullah and others v. The State 2015 SCMR 1002; Ameer Hamza alias Hamza v. The State 2015 PCr.LJ 1402; Ghulam Sarwar v. The State 2015 PCr.LJ 1767; Muhammad Riaz v. The State 2019 PCr.LJ Note 44; Muhammad Aslam v. The State 2011 SCMR 820; Tariq Pervez v. The State 1995 SCMR 1345; Mst. Sakina Ramzan v. The State 2021 SCMR 451; Zubair Khan v. The State 2021 SCMR 492; Kashif Amir v. The State PLD 2010 SC 1052; Sajjad v. The State 2013 PCr.LJ 557; Niaz Muhammad v. The State 2006 PCr.LJ 228; Muslim Khan and others v. The State 2002 YLR 2813; Bashir Ahmed and others v. Abdul Aziz and 7 others PLD 2007 Kar. 489; Qasim and others v. The State PLD 1967 Kar. 233; Muhammad Mansha v. The State 2018 SCMR 772; Muhammad Ilyas v. The State 1997 SCMR 25; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221 and Muhammd Akram v. The State 2009 SCMR 230 ref.

Safdar Ali Ghori for Petitioners.

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

YLR 2022 FEDERAL SHARIAT COURT 1946 #

2022 Y L R 1946

[Federal Shariat Court]

Before Khadim Hussain M. Shaikh, J

ALI KHAN and 2 others---Appellants

Versus

The STATE---Respondent

Jail Criminal Appeals Nos. 5-K and 7-K of 2021, decided on 5th November, 2021.

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

Akhtar Ali and others v. The State 2008 SCMR 6; Ayub Masih v. The State PLD 2002 SC 1038 and Muhammad Asif v. The State 2017 SCMR 486 rel.

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

----S. 161---Supplementary statement---Scope---Any statement or further statement of the complainant recorded during investigation by the police would neither be equated with FIR nor was read as a part of the FIR---Further statement could be treated as statement under S. 161, Cr.P.C., which could only be used by the accused to contradict the witness and the same could not be used by the prosecution.

Falak Sher alias Sheru v. The State 1995 SCMR 1350 and Khalid Javed and another v. The State 2003 SCMR 1419 rel.

----Art. 22---Test identification parade---Object and purpose---Purpose of identification test is to test that evidence and is a check against the false implication---Identification test would be a good piece of evidence against the genuine culprits---Safe rule is that the sworn testimony of the witness in the Court as to the identity of the accused, who were strangers to the witnesses, generally speaking, required corroboration, which should be in the form of an earlier identification proceeding.

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

----Ss. 452 & 506(2)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(3)---House trespass, criminal intimidation, haraabah---Appreciation of evidence---Benefit of doubt--- Contradictions in the statements of witnesses--- Scope---Accused were charged for committing robbery after entering into the house of complainant---Complainant had claimed that he had identified accused before the police but Investigating Officer had stated that the complainant was not called at police station to identify accused---Son of complainant/witness had stated that he had accompanied his father for lodging the FIR, whereas brother of complainant/witness had stated that they went to police station with complainant (for lodging FIR), but the complainant did not state about the accompanying of either his son or his brother to the police station at the time of lodging the FIR---Police Officials had stated that the complainant alone came at the police station for lodging of the FIR---Complainant had stated that he, his son and his brother including 6/7 womenfolk were present in the house (at the time of incident)---Likewise son of complainant had stated that about 6/7 womenfolk along with 3/4 children were present in the house at the time of incident and he further went on to say that the son of brother of complainant aged about 18 years was also present in the house at the time of incident---Brother of complainant did not speak about availability of womenfolk, but he had admitted that his son was present in the house at the time of incident, who had not been cited as witness in the case---However, no one among the women and son of brother of complainant was either examined by the prosecution or was cited as witness, which also adversely reflected upon the prosecution case---Complainant had stated that their house was consisted of 4/5 rooms, while son of complainant had stated that their house was consisted of 03 rooms with one veranda---Brother of complainant/witness had stated that there were 03 rooms built on the ground floor in their house---Complainant had stated that accused persons were not known him previously while his son and brother had stated that accused persons were already known to them, but they did not state about the identity of three other accused---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond a reasonable doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

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

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

----Ss. 452 & 506(2)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(3)---House trespass, criminal intimidation, haraabah---Appreciation of evidence---Benefit of doubt---Recovery of robbed articles--- Reliance--- Scope--- Accused were charged for committing robbery after entering into the house of complainant---Record showed that one pair of neelum, one pair of ear rings, one ladies gold ring, one ladies watch, one gents watch and one mobile phone China were recovered on the pointation of accused persons---Such recovery having not been proved was of no help to the prosecution---As per record, accused was allegedly arrested and he remained in police custody and the alleged recovery was shown to have been made after 05 days of arrest of the accused---Alleged place of recovery being open and public place was also accessible to everyone---Moreover, the alleged recovered property was not sealed at the spot and mashirnama thereof was prepared at the police station and it was not written in presence of the mashirs as was evident from the evidence of mashir---Descriptions and marks of identification and or weight of the alleged recovered ornaments of gold were not shown---Even the identification test thereof was not made---Recovered articles having been already returned to their owner, were not produced in the Trial Court at the time of recording evidence of the witnesses as was evident from the statement of second Investigating Officer---Statement of accused under S.342, Cr.P.C., depicted that the alleged recovery of ornaments of gold, two wrist watches and mobile phones etc. was not put to accused to extract his explanation, which could not be used against him---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond a reasonable doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

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

----Ss. 452 & 506(2)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(3)---Criminal Procedure Code (V of 1898), S. 103--- House trespass, criminal intimidation, haraabah---Appreciation of evidence---Benefit of doubt---Non-association of private witnesses at the time of recovery proceedings---Effect---Accused were charged for committing robbery after entering into the house of complainant---Place wherefrom the alleged recovery of ornaments of gold, watches and mobile was shown to have been made was located in heart of City, where besides the University's employees, the security personnel always remained available, but no effort was shown to have been made by the police to associate any independent person from the locality to witness the alleged recovery proceedings, which was violative of mandatory provisions of S.103, Cr.P.C.---For the official making searches, recovery and arrest, are required to associate private persons---Circumstances established that the prosecution had miserably failed to prove its case against the accused persons beyond a reasonable doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

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

Akhtar Ali and others v. The State 2008 SCMR 6; Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Ilyas v. The State 1997 SCMR 25 rel.

(i) Criminal trial---

----Benefit of doubt---Principle---Single circumstance creating reasonable doubt in the prudent mind about the guilt of the accused, benefit thereof would be extended to the accused not as a matter of grace or concession, but as matter of right.

Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Mrs. Aftab Bano for Appellant (in Jail Criminal Appeal No.5-K of 2021).

Mahmood A. Qureshi for Appellant (in Criminal Appeal No.7-K of 2021).

Munwar Ali Bhatti for the Complainant.

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

YLR 2022 FEDERAL SHARIAT COURT 2123 #

2022 Y L R 2123

[Federal Shariat Court]

Before Dr. Syed Muhammad Anwer, A.C.J. and Khadim Hussain M. Shaikh, JJ

IMRAN KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 8-I, Criminal Suo Motu Revision No.1-I and Criminal Appeal No. 9-I of 2021, decided on 23rd June, 2022.

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

----Ss.221, 242 & 265-D---Framing of charge---Object, purpose and scope---Trial of accused is commenced on framing of charge---Purpose and object of framing of charge is to tell an accused precisely and concisely as possible the matter in which he is being charged---Such is to convey an accused with sufficient clearness and certainty as to what prosecution intends to prove against him and making him aware of abreast and alter about allegations and basis on which allegations are levelled against him---Accused is entitled to know its nature at the earliest stage and of which he could have to clear himself---Charge is base and foundation of prosecution case and answer to charge is also equally important for ultimate result of case and fate of accused---Reasonable, rational and plausible answer to charge and taking plea, if any by accused, may be relevant to defence point of view for which proper juncture is the time when charge is answered.

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

----Ss. 161, 164, 173, 242 & 265-D---Framing of charge---Principle---Documents, reliance on---Report under S. 173, Cr.P.C. or FIR alone are not the documents which would show commission of offence---While framing of charge, prosecution case as a whole is to be seen, which includes recovery memo, site plan, statements of witnesses under Ss.161 & 164, Cr.P.C., post mortem report and confessional statements of accused, etc.---Spectrum of charge should be such that all eventualities and exigencies till conclusion of trial can be met with caution, so that no prejudice is caused to either party.

----Art. 17(4)---Penal Code (XLV of 1860), Ss.302(b), 390, 394, 411 & 412---Constitution of Pakistan, Art. 10-A---Criminal Procedure Code (V of 1898), Ss. 221, 537---Qatl-i-Amd, Haraabah, robbery, causing hurt in robbery, recovery of stolen articles---Defect in charge---Error, correction of---Fair trial---Double murder during robbery---Accused was alleged to have committed murder of two ladies during commission of robbery---Trial Court convicted accused and sentenced him to imprisonment for life---Validity---Provision of S. 537, Cr.P.C. applies to an error arising out of mere inadvertence---Wilful departure from procedure cannot be cured by pressing into service S.537, Cr.P.C.---Such was a case of robbery and object of intruders was to commit robbery, as was manifested from the fact that they had removed ornaments of gold and cash amount from the house they entered into i.e. house of complainant---During the course of robbery they committed murder of two innocent ladies in callous and gruesome manner by cutting their throats with Churri (knives)---Trial Court during trial and while passing conviction and sentence committed illegalities and incurable defects---Federal Shariat Court set aside conviction and sentence awarded to accused and remanded the matter to Trial Court for de novo trial from the stage of defect in the trial, namely framing of charges---Appeal was allowed accordingly.

Khalid Aziz v. The State PLD 2003 Pesh. 94 ref.

(d) Constitution of Pakistan---

----Art.10-A---Right of fair trial---Scope---Besides being a blessing and natural right as of now, right of fair trial is a fundamental right also and enjoys Constitutional protection provided by virtue of Art.10-A of the Constitution---Such right can neither be abridged and denied, nor it be avoided in any manner---Courts of country are under Constitutional obligation to ensure that right of fair trial is awarded by observing due process of law---Term fair trial has not been defined in the Constitution, and prerequisites thereof have also not been described, with intent to give the term same meaning, that is broadly and universally recognized and embedded in the criminal jurisprudence---Trial in contravention, disregard and non-compliance of substantial and mandatory provisions relating to mode of conduct of trial, vitiates the trial.

Naubahar alias Baharu v. The State 2020 YLR 159 rel.

Shabbir Hussain Gigyani for Appellant.

Mujahid Ali Khan, Additional Advocate-General, KPK for the State.

Gilgit Baltistan Chief Court

YLR 2022 Gilgit Baltistan Chief Court 293 #

2022 Y L R 293

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, C.J.

Mst. TAHIRA---Appellant

Versus

MUHAMMAD SHAH---Respondent

Civil First Appeal No. 16 of 2020, decided on 9th October, 2020.

Civil Procedure Code (V of 1908)---

----O. IX, R. 3---Dismissal of suit for non-prosecution--- Scope--- Plaintiff sought restoration of suit dismissed for non-prosecution---Plaintiff during the proceedings of the suit had remained absent for four consecutive dates--Conduct of the plaintiff had remained unsatisfactory but since technicalities in dispensation of justice were to be avoided and as far as practicable the cases were to be decided on merits and as the application for restoration of suit was filed well within time, therefore, in the larger interest of justice suit was restored subject to payment of cost.

Naeem Akhtar Jan for Appellant/ Plaintiff.

Sadiq Hussain for Respondent.

YLR 2022 Gilgit Baltistan Chief Court 361 #

2022 Y L R 361

[Gilgit-Baltistan Chief Court]

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

MUHAMMAD JAN---Appellant

Versus

SHERBAZ and another---Respondents

Civil First Appeal No. 20 of 2019, decided on 10th September, 2020.

Civil Procedure Code (V of 1908)---

----O. IX, R. 13---Limitation Act (IX of 1908), Art. 164---Application for setting aside ex-parte decree---Limitation---Scope---Appellant assailed the dismissal of his application under O.IX, R.13, C.P.C.---Validity---Appellant had filed the application for setting aside of the ex-parte decree after lapse of more than 1½ years of the knowledge of ex-parte decree---Under Art. 164 of Limitation Act, 1908, time for filing of petition under O.IX, R.13, C.P.C. ran from the knowledge of such ex-parte decree---Appellant had not filed application for condonation of delay---Trial Court had rightly passed the decree on merit after recording of oral and documentary evidence of the respondents---Appeal was dismissed, in circumstances.

Amjad Hussain and Shibbir Ali for Appellant.

Zahid Ali Baig for Respondents.

YLR 2022 Gilgit Baltistan Chief Court 375 #

2022 Y L R 375

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

IJLAL HUSSAIN---Petitioner

Versus

DIRECTOR GENERAL NADRA and 2 others---Respondents

Civil Miscellaneous (Review Petition) No. 434 of 2019, decided on 4th December, 2020.

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

----S. 114 & O. XLVII---Review---No new ground(s) taken by the review petitioner---Scope---Petitioner sought review of the judgment passed by the Chief Court in his revision petition---Held, that grounds agitated by the petitioner, in present review petition, were the same which were taken in the revision petition whereas re-agitation of grounds was not permissible under the law---Scope of review was very limited---Review could not be used as a substitute of regular appeal which was competent on a question of facts and law---Mere fact that a Court had taken an erroneous view on the question of fact/law would not attract review jurisdiction which grounds were eminent in an appeal or revision---No ground existed, in the present case, for the Chief Court to review its judgment---Review petition was dismissed, in circumstances.

2013 MLD 1132 ref.

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

----S.114 & O. XLVII---Review---Scope---Main aim of review was correction of errors not involving process of reasoning or appreciation of law and facts---Review was not for correcting wrong decision while exercising power of review---Court could not hear the matter as an appeal against its own judgment.

2003 CLC 1773 ref.

Zahid Ali Baig for Petitionr.

Nasir Ahmed, Legal Adviser for Respondents.

YLR 2022 Gilgit Baltistan Chief Court 422 #

2022 Y L R 422

[Gilgit-Baltistan Chief Court]

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

HADI UR REHMAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 33 of 2019, decided on 18th June, 2020.

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

----Ss.9 (c) & 36---Recovery of narcotic substance---Appreciation of evidence---Chemical analysis---Delay in sending samples--- Quantity of narcotics---Determination---Charas (Gardah) weighing 3500 grams was alleged to have been recovered from accused---Trial Court convicted accused and sentenced him to imprisonment for five years---Validity---Four packets of Charas weighing 875 grams each were alleged to have been recovered from possession of accused---Packets were sent to Chemical Examiner after an unexplained delay of about one month and nine days---Chemical Examiner did not state in his report that from total 3500 grams of Charas (Gardah) how much Charas in purified condition could have been extracted---Such lapse on the part of Chemical Examiner could not be ignored lightly and benefit of such doubt was to be given to accused as a matter of right---High Court maintained conviction awarded to accused by Trial Court but sentence was reduced from five years to two years imprisonment---Appeal was dismissed accordingly.

2017 YLR 1292; 2008 YLR 985; 2012 YLR 251; 2015 YLR 2163; 2015 YLR 2520; 2016 YLR Note 123; 2016 YLR 85; 2009 SCMR 1169; 2019 PCr.LJ 1441; 2012 CLC 1645 and 2007 YLR 373 ref.

2008 SCMR 991 rel.

Shahbaz Ali for Appellant.

Sami Ahmed for the State.

YLR 2022 Gilgit Baltistan Chief Court 447 #

2022 Y L R 447

[Gilgit-Baltistan Chief Court]

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

Engineer MAZHAR HUSSAIN and 10 others---Petitioners

Versus

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

Writ Petition No. 98 of 2020 along with C.M. No. 187 of 2020 and C.O.C. No.9 of 2020, decided on 11th June, 2020.

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

----Ss. 3 & 4---Contempt of Court---Scope---Petitioners assailed notification issued by official respondents whereby private respondent was assigned professional engineer work by posting him as Executive Engineer being diploma holder---Chief Court directed the parties to maintain status quo---Private respondent, however, alternatively joined his duties at another district in defiance of the court order---Respondents appeared before the court and submitted unconditional apology---Apology was accepted but the impugned notification was recalled and the private respondent was directed to report at his previous place of posting---Writ petition and contempt petition were disposed of accordingly.

Manzoor Ahmed for Petitioners.

Amjad Hussain for Respondents.

YLR 2022 Gilgit Baltistan Chief Court 475 #

2022 Y L R 475

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, C.J.

MIR BAZ through L.Rs. and 3 others---Petitioners

Versus

Mst. NOOR and 16 others---Respondents

Civil Miscellaneous No. 575 of 2019, decided on 7th October, 2020.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and injunction---Concurrent findings of two Courts below---Petitioners/plaintiffs claimed to be exclusive owners of water of spring in question exclusively to irrigate their lands---Suit and appeal filed by petitioners/plaintiffs was dismissed by Trial Court and Lower Appellate Court---Validity---Petitioners/ plaintiffs assailed the matter before Supreme Court and the petition was dismissed for non-prosecution---Order of Supreme Court had gained finality---Petitioners/plaintiffs preferred petition after lapse of almost four years eight months and eleven days despite having knowledge of order as the same was passed in presence of parties and their counsels---Limitation to file such petitions were provided only three years---Order was passed by High Court in presence of parties and their counsel, therefore, plea of fraud and misrepresentation could not be substantiated---High Court declined to interfere in the matter---Revision was dismissed in circumstances.

Zahid Ali Baig for Petitioners.

Ibadullah for Respondents.

YLR 2022 Gilgit Baltistan Chief Court 518 #

2022 Y L R 518

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

MALIK AFREEN and 3 others---Petitioners/Plaintiffs

Versus

AHLIAN-E-HANDARAP through Representatives and others---Respondents

Civil Revision No. 8 of 2020, decided on 2nd September, 2021.

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

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Temporary injunction, refusal of---Scope---Plaintiffs sought temporary injunction and right to graze their cattle in the disputed pasture till decision in the suit---Validity---Plaintiffs by dint of an agreement, allegedly executed between the then Raja and father of the plaintiffs, were claiming rights of grazing of their cattle in the suit pasture---Plaintiffs had filed an unattested copy of the agreement which was neither obtained from the proper office/Custodian of said agreement viz. A.C. office, the then Assistant Political Agent Office nor from record room of D.C., the then Political Agent Office, thus veracity of the document was highly doubtful---Residents of the village in which the pasture existed were not party to agreement, thus, the agreement was not binding on them---Government had also cancelled the so-called agreement---Prima facie arguable case did not lie in favour of the plaintiffs and balance of convenience was also not in their favour---Plaintiffs would not suffer irreparable loss if temporary injunction was not granted as they had their own pastures in their relevant district---Revision petition was dismissed.

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

----O. XXXIX, Rr. 1 & 2---Interim injunction--- Scope--- Prima facie arguable case in favour of the plaintiff, irreparable loss and balance of convenience must be in favour of the plaintiff, which are required to be established for grant of interim injunction and if one of the said ingredients is missing, relief cannot be granted to the party seeking interim injunction.

Manzoor Ahmad and Muhammad Nadir for Petitioners/Plaintiffs.

Raja Shakeel Ahmad for Respondents Set-I.

Deputy A.G. (Civil) for Respondents Set-II.

YLR 2022 Gilgit Baltistan Chief Court 565 #

2022 Y L R 565

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

MUJAHIDABAD WELFARE AND DEVELOPMENT ORGANIZATION JUTAL through Members---Petitioners/Plaintiffs

Versus

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

Civil Revision No. 55 of 2020, decided on 30th September, 2020.

Civil Procedure Code (V of 1908)---

----O.VII, R.11 & O.XXXIX, Rr. 1, 2---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Interim injunction, grant of---Rejection of plaint---Change of site for livestock dispensary---Petitioners/plaintiffs assailed construction of livestock dispensary at the site which was changed by reconstituted site selection committee---Validity---Petitioners/plaintiffs made out prima facie arguable case, balance of convenience was also in their favour and if temporary injunction was not granted in favour of petitioners/ plaintiffs, they would suffer irreparable loss---Trial Court rightly granted temporary injunction in favour of petitioners/plaintiffs and Lower Appellate Court failed to apply its judicious mind while setting aside order passed by Trial Court and arrived at wrong conclusion---Lower Appellate Court committed material irregularity and illegality while rejecting plaint filed by petitioners/ plaintiffs under O.VII, R.11, C.P.C.---High Court in exercise of revisional jurisdiction set aside order passed by Lower Appellate Court and restored that of Trial Court---Revision was allowed accordingly.

Munir Akram for Petitioners/ Plaintiffs.

Deputy A.G. (Civil) assisted by Jafar Ali, Legal Adviser, PWD Department for Respondents Nos. 1 to 9.

Kamal Hussain for Respondents Nos. 10 to 13.

Mukhtar Ahmad for Respondents Nos. 14 and 15.

Johar Ali, Jafar Hussain for Respondent No.16.

YLR 2022 Gilgit Baltistan Chief Court 600 #

2022 Y L R 600

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

MUHAMMAD IBRAHIM and another---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous No. 115 of 2020, decided on 15th July, 2020.

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

----S. 498---Penal Code (XLV of 1860), Ss. 148, 149, 109, 337-A(iii), 341, 395 & 427---Rioting, armed with deadly weapon, common object, abetment, shajjah-i-hashimah, wrongful restraint, dacoity, mischief causing damage to the amount of fifty rupees---Pre-arrest bail, refusal of---Prompt FIR---Rule of consistency---Scope---Accused persons, along with others were alleged to have waylaid the complainant party, belaboured one of them by hitting him, destroyed their vehicle and snatched certain sum of amount from the victim---Accused were directly nominated in the promptly lodged FIR and the offence under S.395, P.P.C. fell within the ambit of prohibitory clause of S.497, Cr.P.C.---Case of the accused was not at par with that of their co-accused who were released under S.169, Cr.P.C. by the police as their role was not equal in nature, thus rule of consistency did not apply to the case---Accused persons did not deserve extra ordinary discretionary relief of pre-arrest bail---Petition was dismissed, in circumstances.

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

----S. 498---Pre-arrest bail---Scope---Pre-arrest bail is granted only in those matters where it would appear that the registration of case was based on enmity/mala fide or where no offence was shown to have been committed on the very face of record. [p. 602] C

Shahbaz Ali for Petitioners/ accused.

Dy. Advocate General for the State.

Basharat Ali for the Complainant.

YLR 2022 Gilgit Baltistan Chief Court 635 #

2022 Y L R 635

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

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

Versus

AHALIAN NALTAR BALA, PAIN through Representatives and 3 others---Respondents

Civil Revision No. 58 of 2019, decided on 4th September, 2020.

Northern Areas Forest Rules, 1983---

----R. 3---Suit for declaration---Cutting and removal of trees---Scope---Respondents filed suit contending therein that they being residents of the locality were entitled to get damaged/dead fallen trees and they had preferential right over other persons---Trial Court dismissed the suit whereas Appellate Court partly allowed the suit by declaring that the respondents were entitled to get dead fallen/damaged trees which had died naturally or damaged due to act of God---Validity---Rule 3 of Northern Areas Forest Rules, 1983, provided that the natives/residents of locality were entitled to get the fallen dry wood---Respondents had proved their claim by adducing reliable, cogent oral and documentary evidence in the Trial Court, whereas the petitioners had failed to adduce any independent oral and documentary evidence to rebut the claim of the respondents---Appellate Court had rightly decreed the suit partly in favour of the respondents and there was neither misreading or non-reading of evidence nor any misapplication of law---Revision petition was dismissed.

Additional Advocate General for Petitioners.

Munir Ahmad and Imtiaz Hussain for Respondents.

YLR 2022 Gilgit Baltistan Chief Court 701 #

2022 Y L R 701

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, C.J.

The STATE through Police Station Skardu---Petitioner

Versus

SHABBIR HUSSAIN---Respondent

Criminal Miscellaneous No. 235 of 2020, decided on 2nd December, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302, 324 & 337-A---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah---Bail, cancellation of---Scope---Complainant sought cancellation of bail granted to accused---Accused was directly charged in the FIR by the complainant with the allegation that the accused had hit the nephew of complainant by spade with intention to kill him---Police had recovered a spade without handle from the place of occurrence--- Accused himself had appeared at the police station by holding handle of spade and had stated that he had hit an unknown person with spade on his field; that the spade was left at the place of occurrence and that he had taken the handle of spade with him---Prima facie, no doubt regarding recovery of spade and its handle existed---Accused had admitted the commission of offence in front of prosecution witnesses---One of the witnesses had stated that the deceased went towards the house of accused by saying that the accused had to pay some amount to the deceased---Allegation on the deceased by the accused regarding rape of his wife by the deceased was not justified by any prosecution witness nor was there any statement of the victim which could substantiate stance of the accused---Plea of self-defence on the part of accused was not convincing---Offence with which the accused was charged provided for capital punishment where grant of bail to a nominated accused amounted to miscarriage of justice---Petition for cancellation of bail was accepted, in circumstances.

Dy. Advocate General for the State.

Basharat Hussain for Respondent/ Accused.

YLR 2022 Gilgit Baltistan Chief Court 716 #

2022 Y L R 716

[Gilgit-Baltistan Chief Court]

Before Raja Shakeel Ahmad, J

GOVERNMENT OF PAKISTAN through Collector/Settlement Officer, Gilgit and another---Appellants

Versus

MOHAMMAD AZAM and 9 others---Respondents

C.F.A. No. 44 of 2019, decided on 22nd October, 2021.

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

----S. 47 & O.XXI, R. 23-A---Execution---Objection petition---Scope---Reference petition of respondents/decree holders was accepted by referee/Trial Court---Case remanded by High Court was again accepted by Trial Court---Appellant's previous appeals were dismissed being time barred---Execution petition was objected by the appellants---Executing Court directed the judgement debtor to deposit decretal amount---Validity---Objections as to the non-executability of decree related to execution of decree and court would be clearly barred from considering the same under the provisions of R. 23A, O. XXI, C.P.C. unless the judgement debtor deposited the decretal amount in the court or furnished the security for its payment---Impugned order passed by executing Court was just, proper and within the four corners of law---Appeal being not maintainable was dismissed accordingly.

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

----S.47 & O. XXI, R. 23-A---Execution---Objection petition---Scope---Section 47, C.P.C. barred separate suit where question was within the scope of the section that a court was barred from considering such objections, unless judgment debtor makes compliance of R. 23A of O. XXI, Civil Procedure Code, 1908 by depositing the decretal amount in Court or furnishes security for its payment.

----O. XXI, R. 23-A---Object of R.23-A of O.XXI, Civil Procedure Code, 1908 was to prevent/preclude delays in expeditious disposal of the executions of decrees caused by baseless petitions.

Additional Advocate General for Appellants.

Munir Ahmed, Imtiaz Hussain and Akhtar Ali for Respondents.

YLR 2022 Gilgit Baltistan Chief Court 794 #

2022 Y L R 794

[Gilgit-Baltistan Chief Court]

Before Ali Baig, C.J. and Johar Ali, J

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

Versus

Haji SAFAR KHAN---Respondent

C.F.As. Nos. 83, 84 and 85 of 2020, decided on 24th November, 2021.

Land Acquisition Act (I of 1894)---

----Ss. 12 & 25---Acquisition of land---Compensation rate, determination at time of award instead of the time of notice---Acquisition proceeding was started---Compensation amount was fixed at Rs.16,00,000/- per kanal---Compensation rate was enhanced to Rs.55,00,000/- in 2015---Respondents/applicants received compensation under protest contending that they were entitled to receive the compensation to the tune of enhanced value along with 8% compound interest---Trial Court decreed reference of respondents / applicant--- Validity---Admittedly, after issuing notice under S.4 of Land Acquisition Act, 1894 in 2010, appellants had not taken any steps regarding preparation of the award till 2016---In the meantime appellants had enhanced the said compensation rates---Appellants were legally bound to prepare the award according to the market/ potential value of the acquired land during the preparation of award---Admittedly, award was prepared in 2016----Compensation rates were revised in 2015---Respondents were entitled to get compensation according to revised rate---Appeal was dismissed accordingly.

Additional Advocate General for Appellants.

Shams Uddin for Respondents.

YLR 2022 Gilgit Baltistan Chief Court 937 #

2022 Y L R 937

[Gilgit-Baltistan Chief Court]

Before Raja Shakeel Ahmad, J

GHULAM MEHDI---Petitioner

Versus

RAJAB ALI---Respondent

Civil Revision No. 12 of 2016, decided on 5th November, 2021.

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

----O.XLI, R.31---General Clauses Act (X of 1897), S.24A---Suit for declaration was concurrently dismissed---Petitioner's contention that appellate Court had passed its judgment in mechanical manner without application of judicious mind---Validity---Perusal of the judgment of the appellate Court showed that the appeal was dealt with in very cursory manner---Neither issue-wise findings were given nor points for determination were set out and decision given thereon--- Appellate Court frustrated the very purpose of the provision of O.XLI, R.31 of Civil Procedure Code, 1908---Revision petition was accepted and case was remanded.

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

----O.XLI, R.31---General Clauses Act (X of 1897), S.24A---Appellate Court, duty of---Right of appeal---Phrase "points for determination"---Scope---Statutory right of appeal conferred a right of rehearing the whole dispute unless expressly restricted---Appellate Court had to consider the controversy entirely afresh both as regard to facts and law and was to state the points arising from the determination---Appellate Court was required to give its decision with regard to each point, which would be self-explanatory, illuminative and in the nature of speaking order---Where the provisions of O.XLI, R.31, C.P.C. were not complied with, the judgment was not in accordance with law---Such was evident from the judgment that the judge was conscious of the matter involved and that decision had been pronounced on the basis of record---Phrase "points for determination" referred to all important questions involved in the case---Necessary for the appellate Court to record the points for determination so that it could be determined whether the Court had dealt with all the points.

Khadim Hussain and Jaffar Hussain for Petitioner.

Moazam Ali for Respondent.

YLR 2022 Gilgit Baltistan Chief Court 1012 #

2022 Y L R 1012

[Gilgit-Baltistan Chief Court]

Before Johar Ali, J

HAJAT KHAN---Petitioner

Versus

LATIF and another---Respondents

Civil Revision No. 64 of 2018, decided on 10th December, 2021.

Specific Relief Act (I of 1877)---

----Ss. 42 & 8---Suit for declaration, possession and mesne profits---Scope---Plaintiffs filed suit for declaration, recovery of possession and mesne profits on the ground that they were owner of land measuring 5 kanals and 19 marlas out of which 3 kanals came in the ownership of defendant as a result of compromise decree but the defendant chose to retain possession of 5 kanals and 19 marlas---Trial Court dismissed the suit whereas Appellate Court decreed the same---Validity---Defendant had become owner of the land measuring 3 kanals out of 5 kanals and 19 marlas on the basis of compromise decree, therefore, he could not claim excess land which was given by that very judgment to him---Possession of excess 2 kanals and 19 marlas with the defendant was illegal and without lawful authority---Plaintiffs had succeeded in proving their case---Revision petition was dismissed.

Muhammad Qasim Shahzad for Petitioner.

Latif Shah for Respondents.

YLR 2022 Gilgit Baltistan Chief Court 1033 #

2022 Y L R 1033

[Gilgit-Baltistan Chief Court]

Before Malik Inayat-ur-Rehman, J

MOHAMMAD SALEEM---Petitioner

Versus

Mst. SAFIA BEGUM and another---Respondents

Civil Revision No. 119 of 2019, decided on 20th October, 2021.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Suit for recovery of dower---Scope---Plaintiff (wife) sought recovery of dower after being divorced---Contention of defendant (husband) was that the plaintiff had obtained divorce as a result of private arbitration and that she had withdrawn from all her claims---Contention of plaintiff was that the award was not made rule of court; that it was not khula and that the Jirga had not determined the dower---Validity---Plaintiff had proved through evidence that dower was fixed at Rs. 250,000/- whereas the defendant had proved that he had paid only Rs. 50,000/- to the plaintiff---Defendant had failed to prove through contents of the award that the plaintiff had waived her remaining part of the dower---Plaintiff was entitled to obtain Rs. 200,000/- as her dower---Revision petition was dismissed.

Saadat Ullah for Petitioner.

Shuja Alam for Respondents.

YLR 2022 Gilgit Baltistan Chief Court 1207 #

2022 Y L R 1207

[Gilgit-Baltistan Chief Court]

Before Ali Baig, C.J. and Raja Shakeel Ahmad, J

Messrs KARAKORUM COOPERATIVE BANK and another---Appellants

Versus

Mst. SOFIA BEGUM and 10 others---Respondents

C.F.As. Nos.87 of 2020 and 10 of 2021, decided on 15th November, 2021.

Specific Relief Act (I of 1877)---

----S. 42---Contract Act (IX of 1872), S. 73---Suit for declaration and damages---Compensation for loss or damage caused by breach of contract---Scope---Plaintiffs purchased a property from the defendant---Later on, another person filed a suit against defendant for redemption of the property---Suit was decreed throughout---Plaintiffs filed a suit for declaration and sought recovery of latest value of suit property, cost of improvements that they had made on the property and costs of defending the suit filed by said person---Trial Court partially decreed the suit---Validity---Plaintiffs had failed to substantiate the market value of the disputed land, however sale deed was proved as such original sale amount as determined in the year 1986 was rightly decreed---Plaintiffs had also failed to prove the costs of maintenance and improvements as such the claim of plaintiffs upto the extent of renovation charges was baseless---Claim regarding the costs to defend the suit was accepted as per claim since 1991 till 2007 by the Trial Court---Judgment and decree passed by Trial Court was upheld---Appeals were dismissed.

Khursheed ul Hassan for Appellant (in C.F.A. No.87 of 2020).

Manzoor Ahmed for Respondents (in C.F.A. No.87 of 2020).

Manzoor Ahmed for Appellants/Plaintiffs (in C.F.A. No.1 of 2021).

YLR 2022 Gilgit Baltistan Chief Court 1271 #

2022 Y L R 1271

[Gilgit-Baltistan Chief Court]

Before Johar Ali and Raja Shakeel Ahmad, JJ

Raja ABDULLAH KHAN---Petitioner

Versus

Raja LIAQAT ALI KHAN and 4 others---Respondents

C. Rev. 139 of 2021, decided on 27th November, 2021.

Land Acquisition Act (I of 1894)---

----Ss. 18 & 30---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Land acquisition---Interlocutory order, value of---Application for status quo order annexed with suit for declaration---Respondents/plaintiffs claimed that they were owners of property in dispute; that petitioner/defendant prepared award in his name in collusion with other defendants and received compensation amount of Rs.400,000/-; that plaintiffs were entitled for their share amounting Rs.321,122.24/- as co-sharers in said property---Court had passed impugned order granting ad-interim status quo with direction to respondents/defendants (other than the petitioner) for preparation of award for land effected during construction of road; and further directed to submit the compliance report on date adjourned---Petitioner contended that Court had no jurisdiction to pass ex-part ante status quo order without extending a right of defense to defendants; that trial Court started trial partially without asking the petitioner to file written statement; that Court passed ex-parte order on first hearing; that vires of an Award prepared under Land Acquisition Act, 1894, could be assailed through a reference under Ss. 18 & 30 of the said Act, that Civil Court had no jurisdiction to entertain suit challenging an award made by Collector---Validity---Suit was filed during winter vacations---Trial Court/duty judge issued notice on same day for attendance of respondents and fixed the date of the case prevailing the status quo---Petitioner (contesting defendant) was absent---Order sheet was silent about service of summons on petitioner---Other defendants/respondents were present who filed written statement---Trial Court heard the argument on the same day in absence of petitioner and granted ex-parte decree under mischief of the injunction order and further directed the Collector to make award in favour of plaintiff and submit compliance report on next date of hearing---All proceedings were carried against provisions of Civil Procedure Code, 1908---Neither any directions were made to petitioner for submission of written statement nor any action taken under O. VIII, R. 10 of Civil Procedure Code, 1908---Impugned order maintained status quo but in the same breath directed the respondents to make changes in revenue record and make award in name of plaintiffs which was ante status quo---Impugned order amounted to a decree which could not be passed without hearing of parties, after framing of issues and procuring the evidence---Trial Court converted the decree into execution petition by issuing continuous orders for compliance of impugned judgment/order---Revision petition was allowed; impugned order was set aside; Trial Court was directed to proceed further after obtaining written statement and respondents were restrained to make changes in revenue record till final disposal of suit.

Basharat Ali for Petitioner.

Safdar Ali for Respondent No.1.

A.A.G. for Respondents Nos. 2 to 5.

YLR 2022 Gilgit Baltistan Chief Court 1323 #

2022 Y L R 1323

[Gilgit-Baltistan Chief Court]

Before Raja Shakeel Ahmad, J

ASSISTANT DIRECTOR SUPPLY AND TRANSPORT and 2 others---Petitioners

Versus

Haji GHULAM MUSTAFA (deceased) through L.Rs.---Respondents

Civil Revision No. 28 of 2017, decided on 19th November, 2021.

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

----Ss. 7 & 10---Suit for declaration---Petitioners/public officials invited bids---Predecessor of the respondents/plaintiffs was accepted being the lowest bidder---Respondent submitted application before petitioners for revocation of the offer claiming that he had regretted on his loss and unworkable rates; that he had made the same bid under mental/physical stress, due to high bold pressure etc.; that petitioners refused to accept the said application despite the fact that the respondents refused to accept the letter of acceptance of the bid and had not signed the contract with the petitioners---Suit was concurrently decreed by the Courts below---Petitioner contended that soon after the respondent offered the lowest bid for the proposed supplies the same was accepted by the petitioner and dispatched the acceptance notices through registered mail; that after dispatch of the said notice, the respondent was under contractual liabilities and submission of application by the respondent was a futile exercise---Validity---Respondent had not signed the contract with the petitioners and in absence of any contract the contractual liabilities never occurred---No document of contract was available on the case file which was agreed/signed between the parties---Acceptance of offer was not complete---Notice did not constitute an absolute acceptance as required under S.7 of Contract Act, 1872---Contract had to be signed by the parties,, but before that the respondent revoked his offer by filing an application to the petitioner with the plea to exculpate the respondent from the contractual obligations and even forfeiting his earnest money---Revision petition was dismissed accordingly.

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

----S.115---Powers of High Court under S. 115, Civil Procedure Code, 1908 were very limited---Revisional jurisdiction could be invoked only in the case of exercise of jurisdiction by the lower courts not vested in them by law or the Courts had failed to exercise the jurisdiction so vested in them but same was exercised in an illegal manner or that some material irregularity was committed or findings of subordinate Courts were suffering from misreading, non-reading of evidence or that the inference drawn was in utter disregard of evidence.

Muhammad Riaz for Petitioners.

Shamsuddin for Respondents.

YLR 2022 Gilgit Baltistan Chief Court 1338 #

2022 Y L R 1338

[Gilgit-Baltistan Chief Court]

Before Ali Baig, C.J.

GUL SAFAID---Petitioner

Versus

STATE---Respondent

Criminal Miscellaneous No. 158 of 2021, decided on 3rd December, 2021.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, refusal of---Perusal of record revealed that the accused was directly nominated in the promptly lodged FIR with specific role of effective firing on the deceased---Weapon of offence i.e. five shot rifle had been recovered from the house of accused on his pointation in presence of impartial private marginal witnesses---Offence under S.302, P.P.C. fell within the ambit of prohibitory clause of 497, Cr.P.C and eye-witnesses who were natural witnesses had witnessed the occurrence---Motive behind the occurrence had been mentioned as old enmity between the parties in the FIR---As far as rule of consistency was concerned, no recovery had been effected from the co-accused of the present accused and some prosecution witnesses in their statements recorded under S. 161, Cr.P.C by the police had exonerated the said co-accused---Rule of consistency thus was not applicable in the case of present accused---Accused had remained absconder for about 04 years and he was arrested recently---From tentative assessment of material collected by the prosecution during investigation, it transpired that reasonable grounds existed to believe that accused had prima-facie committed murder of the deceased---Bail petition was dismissed, in circumstances.

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

----S. 497---Bail---Appreciation of evidence---Scope---Deeper appreciation of evidence and circumstances appearing in the case were neither desirable nor permissible at bail stage as court would not minutely examine the merits of the case nor plea of the defence at such stage.

Shahbaz Ali for Petitioner.

Abdul Karim, Dy. A.G. for the State.

YLR 2022 Gilgit Baltistan Chief Court 1466 #

2022 Y L R 1466

[Gilgit-Baltistan Chief Court]

Before Raja Shakeel Ahmad, J

KHUSH MURAD and 6 others---Petitioners

Versus

MALANG JAN---Respondent

Civil Revision No. 109 of 2018, decided on 26th November, 2021.

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

----Arts. 117 & 118---Civil Procedure Code (V of 1908), O. XLI, R. 31---Shajra Akas---Suit for declaration and permanent injunction filed by respondent on grounds that he was the owner in possession of the suit land; that he had developed some portion of suit land; that he intended to construct compound wall but defendants were trying to interfere in the construction work---Suit was dismissed by the Trial Court---Appellate Court accepted the respondent's appeal---Petitioners/defendants contended that they were in possession of suit land from the date of purchase and constructed residential house on the suit property; that impugned judgment/decree of the appellate Court was perverse, absurd and ambiguous---Respondent contended that suit land came in the share of this father while distribution of barren land in year 1977 and that petitioners had failed to prove the sale of said land by his father to them---Validity---Respondent was bound to prove his title and possession on the suit land to obtain an executable decree---Trial Court recorded findings on two issues which were most important for determination of respondent's/plaintiff's title and possession on the suit land in negative after sound/correct appraisal of evidence---Plaintiff as witness stated that the suit land was given to him in the year 1977 as his share being head of his house but on the same breath stated that his father and brother were also present during partition of common lands---Respondent admitted that said land was barren and he could not develop the same as he left the locality long ago---Patwari as defendant deposed that in presence of 15 persons he demarcated plots in the locality and when the dispute arose between parties, he went on the spot, called the father of respondent who identified the boundary of his land and said that he had sold the suit land to the father of the petitioners---In cross-examination, he categorically denied of any list prepared by the people and presented to him---Document exhibited by respondent as a list of shareholders was not a Shajra Akas prepared by the revenue officials, neither the same was signed nor rectified by the revenue official---Such a document could not be relied as piece of evidence---Parentage of people in the list was reflected as unknown---Tehsildar Halqa with record admitted that in the actual record of the said list, the relevant serial numbers were tampered and there was difference between the actual record and that exhibited in the Court---Documentary/ oral evidence was not sufficient to prove the ownership and possession of the respondent---Petitioners had established that the disputed property was under their possession and they had constructed house on the same---Appellate Court failed to apply its judicious mind while framing the points of determination---Revision petition was allowed accordingly.

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

----O. XLI, R. 31---"Points for determination"---Connotation---Appellate jurisdiction--- Scope--- Provision of O. XLI, R. 31 of Civil Procedure Code, 1908 was mandatory in nature and were to be followed by the Appellate Court to decide the matter in accordance with law---Statutory right of appeal confers a right of rehearing the whole dispute unless expressly restricted---Appellate Court was to consider the controversy entirely afresh both as regard to facts and law---Appellate judgment should state the points arising for determination---Term "points for determination" refers to all important questions involved in the case---Appellate Court was to record the points for determination so that it can be determined whether the Court had dealt with all the points---Appellate Court was required to give decision with regard to each point which should be self-explanatory, illuminative and in the nature of speaking order---Provisions of O. XLI, R. 31, C.P.C. having not been complied with, the judgment amounts to a bad judgment in the eye of law.

Sher Madad Khan for Petitioners.

YLR 2022 Gilgit Baltistan Chief Court 1501 #

2022 Y L R 1501

[Gilgit-Baltistan Chief Court]

Before Ali Baig, C.J.

BAKHMAL SHEHZAD---Petitioner

Versus

NAZEER AHMED and 3 others---Respondents

Criminal Miscellaneous No.92 of 2021, decided on 14th December, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Bail, cancellation of---Accused was directly charged in the promptly lodged FIR with specific role of effective firing---Eye-witnesses who were natural witnesses had witnessed the occurrence---Motive behind the occurrence had been disclosed in the FIR---Perusal of impugned bail order passed by Trial Court it appeared that the Trial Court had granted bail by holding that the co-accused and accused were equally charged by the complainant for opening fires at the deceased---However, Investigating Officer surprisingly had discharged co-accused from the case---Trial Court had granted bail to the accused on the sole ground of rule of consistency---No incriminating article/ weapon of offence had been recovered from the discharged co-accused, whereas weapon of offence had been recovered from the accused---Case of accused was therefore, distinguishable from that of his co-accused who had been discharged under S.169, Cr.P.C. by the police---Tentative assessment of material available on the record showed that the accused was prima-facie connected with the alleged offence falling within the ambit of prohibitory clause of S.497, Cr.P.C. and he was not entitled for concession of bail---Trial Court while allowing post arrest bail in favour of the accused had completely lost sight of established principles for grant of bail and guidance laid down by superior Courts from time to time---Petition for cancellation of bail was allowed, in circumstances.

Muhammad Kamaran for Petitioner.

Sher Alam for Respondents.

Dy. A.G. Abdul Karim for the State.

YLR 2022 Gilgit Baltistan Chief Court 1567 #

2022 Y L R 1567

[Gilgit-Baltistan Chief Court]

Before Raja Shakeel Ahmed, J

Mst. FATIMA---Petitioner

Versus

DIRECTOR-GENERAL NADRA and another ---Respondents

Civil Revision No. 50 of 2020, decided on 6th November, 2021.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Correction of date of birth---Evidentiary value of academic credentials---Burden of proof---Scope---Petitioner filed suit for correction of date of birth mentioned in her Computerized National Identity Card (CNIC)---Trial Court and Appellate Court concurrently dismissed the suit---Validity---Date of birth of petitioner had been recorded in the matriculation certificate as 01-05-1994, but it was recorded in the CNIC as 01-05-1984---Academic credentials had strong presumption of truth specially when they were not properly rebutted---Burden in the case was on the respondents to rebut the contents of matriculation certificate through reliable documents but they had failed to controvert the same---Revision petition was allowed, impugned judgments were set aside and the suit was decreed as prayed for.

2020 YLR 2266 ref.

Fida Hussain v. Director NADRA and others 2008 SCMR 713 rel.

Abid Hussain for Petitioner.

Shaheed Khawar for Respondents.

YLR 2022 Gilgit Baltistan Chief Court 1632 #

2022 Y L R 1632

[Gilgit-Baltistan Chief Court(Skardu Bench)]

Before Raja Shakeel Ahmad, J

ABDUL JABAR---Petitioner

Versus

MOHAMMAD ISMAIL and 4 others---Respondents

Civil Revision No. 33 of 2019, decided on 3rd November, 2021.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 27---Production of additional evidence in Appellate Court---Irrelevant document---Scope---Petitioner had filed an application under O. XLI, R. 27, C.P.C. for the production of shari fitawa as additional evidence but copy of the same was already part of the record and the same was not exhibited during the trial of the case---Said document was not exhibited being a photocopy and not admissible as piece of evidence---Petitioner had failed to produce the document in the Trial Court in an admissible manner despite the fact that same was in his possession---Appellate Court had rightly observed that the document was not a piece of evidence rather it was a legal proposition that on the death of a person his inheritance devolved on his brother in absence of parents and descendants, which was not disputed in the case---Document under consideration was not relevant documentary piece of evidence---Findings recorded by Appellate Court were not open to exceptions and that too in absence of illegality or irregularity therein---Revision petition was dismissed.

Liaqat Ali Azami for Petitioner.

Abid Hussain Azeem for Respondents.

YLR 2022 Gilgit Baltistan Chief Court 1977 #

2022 Y L R 1977

[Gilgit-Baltistan Chief Court]

Before Malik Inayat-ur-Rehman and Johar Ali, JJ

GHULAM ALI SHAH---Appellant

Versus

GOVERNMENT OF GILGIT-BALTISTAN through Chief Secretary and 5 others---Respondents

Civil First Appeal No. 63 of 2018, decided on 21st October, 2021.

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

----Ss. 18 & 34---Reference to Court---Payment of interest--- Scope---Respondents acquired 8 marlas 6 sarsai commercial land of the appellant for extension and widening of a highway in December, 2007 but awarded compensation amount to the owner at non-commercial rates---Compensation amount was partially paid to the appellant in February, 2015---Appellant was not given the whole compensation amount under the impugned award till date---Appellant was entitled to 8% compound interest with effect from the date of judgment of the Trial Court till final payment of the compensation amount---Appellant had failed to refer to any evidence which was non-read or misread by the Referee Court whereby his claim of grant of compound interest at the rate of 40% of compensation and enhancement of rate of two trees was declined---Likewise, the respondents had failed to disprove the claim of the appellant by any stretch of law and evidence to interfere in the impugned judgment, therefore, the cross-appeal filed by respondents was dismissed---Appeals were disposed of accordingly.

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

----S. 34---Payment on interest---Scope---Section 34 of the Land Acquisition Act, 1894 provides that when amount of compensation is not deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of 8% per annum from the date of taking possession of acquired land until payment of amount to the affectees.

Ehsan Ali for Appellant.

Additional Advocate General assisted by Mohammad Nafees for the Respondents.

YLR 2022 Gilgit Baltistan Chief Court 2002 #

2022 Y L R 2002

[Gilgit-Baltistan Chief Court Skardu Bench)]

Before Raja Shakeel Ahmed, J

IFTIKHAR AHMED and others---Petitioners

Versus

BASHIR AHMED---Respondent

Civil Revision No. 28 of 2019, decided on 3rd November, 2021.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Bar to further suit---Sine die adjournment of execution petition---Scope---Plaintiffs instituted a suit before the Trial Court against defendant for declaration and recovery of possession of suit land---During the proceedings before Trial Court, parties to the suit entered into compromise and compromise decree was passed---Applicants/intervenors filed an application under S. 12(2), C.P.C. for setting aside of the compromise decree---On filing of the application, the plaintiffs filed an objection petition before the Executing Court seeking sine die adjournment of execution petition till disposal of the application---Trial Court adjourned the execution petition whereas appellate court set aside the order passed by Executing Court---Validity---Plaintiff in response to the application under S.12(2), C.P.C., had admitted that the decree was obtained on the basis of mala fide and non-inclusion of applicant in application under S. 12(2), C.P.C., despite the fact that they were entitled to inherit shari share---Order passed by Executing Court was a result of correct appreciation of law and material available on file---Revision petition was allowed and order passed by appellate court was set aside.

Abid Hussain and Ghulam Raza for Petitioners.

Basharat Hussain for Respondent.

YLR 2022 Gilgit Baltistan Chief Court 2053 #

2022 Y L R 2053

[Gilgit-Baltistan Chief Court]

Before Ali Baig, C.J.

EHSAN ALI---Appellant

Versus

AHMED ALI and 2 others---Respondents

Criminal Appeal No. 2 of 2021, decided on 3rd November, 2021.

Penal Code (XLV of 1860)---

----Ss. 337-A, 504 & 506---Shajjah---Intentional insult with intent to provoke breach of the peace---Criminal intimidation---Appreciation of evidence---Scope--- Complainant assailed the acquittal of accused persons by the Magistrate---Prosecution witnesses had not supported the prosecution version and it had failed to prove its version against the accused as the alleged eye-witnesses had resiled from their previous statements recorded before the police under S. 161, Cr.P.C.---Judgment passed by Magistrate was well reasoned and correct appreciation of material available on file and further proceedings in the matter would be a futile exercise and wastage of precious time of the Court---Complainant had failed to point out any material irregularity or illegality in the impugned judgment passed by the Magistrate warranting interference of the Chief Court---Appeal was dismissed.

Zahid Abbas for Appellant.

YLR 2022 Gilgit Baltistan Chief Court 2082 #

2022 Y L R 2082

[Gilgit-Baltistan Chief Court]

Before Raja Shakeel Ahmad, J

REHMAT KHALIQ---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 128 of 2021, decided on 28th October, 2021.

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

----Ss. 497 & 169---Penal Code (XLV of 1860), Ss. 324 & 337-F(v)---Attempt to commit qatl-i-amd--- Ghayr-jaifah---Hashimah--- Bail, grant of--- Discharge of co-accused persons--- Rule of consistency--- Absconsion--- Recovery of weapon---Scope---Accused along with others was alleged to have indiscriminately fired at the victim within the presence of witnesses---Statements of prosecution witnesses were in contradiction with the statement of accused---After arrest of all the three accused the complainant of the FIR himself came to the Investigating Officer with a submission that he had mistakenly mentioned the names of co-accused persons in the FIR and the Investigating Officer on the basis of the said statement had released the co-accused persons under S. 169, Cr.P.C.---Rule of consistency applied to the case as the co-accused with the role at par with the accused had been released by the police---Alleged recovery of weapon of offence from accused had become doubtful because the marginal witnesses of recovery memo. had submitted their affidavits which were part of the bail petition wherein both the witnesses had deposed that they had no knowledge about the alleged recovery from the accused---Petition for grant of bail was accepted, in circumstances.

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

----S. 497---Bail---Further inquiry---Absconsion---Scope---When the case calls for further inquiry into the guilt of the accused person, bail is to be allowed to him as of right and not by way of grace, and in such a case mere absconsion of the relevant accused person may not be sufficient to refuse bail to him.

Ehsan Ullah v. The State 2012 SCMR 1137 Mohammad Sadique v. Sadiq and others PLD 1985 SC 182 and Qamar alias Mitho v. The State PLD 2012 SC 222 ref.

Zahid Nawaz for Petitioner.

Abdul Karim, Dy. Advocate General for the State.

YLR 2022 Gilgit Baltistan Chief Court 2148 #

2022 Y L R 2148

[Gilgit-Baltistan Chief Court]

Before Raja Shakeel Ahmad, J

JAN ALAM---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 141 of 2021, decided on 11th November, 2021.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 409, 471 & 468---Prevention of Corruption Act (II of 1947), S. 5---Criminal breach of trust by public servant, or by banker, merchant or agent---Using as genuine a forged document---Forgery for purpose of cheating---Criminal misconduct---Pre-arrest bail, grant of---Rule of consistency---Scope---Accused was nominated in the FIR with an allegation that he in collaboration with Patwari tempered the tracing cloth---Patwari, who was custodian of the record, might have presumably tempered the tracing cloth but he was released under S. 169, Cr.P.C.---Rule of consistency was fully attracted in the case---Civil litigation between the accused and the complainant on the same subject matter was sub judice before the court of Senior Civil Judge---Case of FIA was based on official record which was already in its custody---Nothing was to be recovered from the accused even after his arrest---Petition for grant of pre-arrest bail was allowed, in circumstances.

Munir Alam for Petitioner.

Baraat Ali, S.H.O., Police Station, FIA Gilgit for the State.

YLR 2022 Gilgit Baltistan Chief Court 2343 #

2022 Y L R 2343

[Gilgit-Baltistan Chief Court]

Before Raja Shakeel Ahmad, J

COLLECTOR/DEPUTY COMMISSIONER GILGIT and another---Petitioners

Versus

MUHAMMAD ISSA and 2 others---Respondents

Civil Revision No. 128 of 2018, decided on 1st December, 2021.

Civil Procedure Code (V of 1908)---

----O. VIII, R. 10---Written statement, right to file---Petitioner/defendant filed appeal against Trial Court's order to stuck off the right to file written statement which was dismissed---Respondent / plaintiff contended that appellants were Government authorities who were misusing their power for prolonging the matter and to humiliate the respondent; that petitioners were not the contesting defendants in the suit; that due to the lethargic attitude of the petitioners the trial was lingering on---Validity---Trial Court provided ample chances to enable the respondents/ defendants to file the written statement---First appellate Court directed the parties to appear before the Trial Court for a date to be fixed by the Trial Court for filing written statement on behalf of the petitioners---Petitioners again sought 6 adjournments for filing the written statement---Such a lethargic attitude of the petitioners was not tolerable which amounted to hindrance in early disposal of cases and advancement of cause of justice---Trial Court initially accommodated the petitioners for a period of two years for filing the written statement before getting the right struck off and they further failed to file the same despite availing 6 more adjournments---Revision petition was dismissed accordingly.

Mir Mohammad, Additional A.G. for Petitioners.

YLR 2022 Gilgit Baltistan Chief Court 2376 #

2022 Y L R 2376

[Gilgit-Baltistan Chief Court]

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

GHULAM ABBAS---Petitioner

Versus

HAZRA KHAN---Respondent

Civil Miscellaneous No. 549 of 2020, decided on 25th February, 2021.

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

----Arts. 168 & 181---Dismissal of appeal/ Miscellaneous Petition for want of prosecution--- Limitation--- Scope--- Article 168 of Limitation Act, 1908 applies to readmission of an appeal dismissed for want of prosecution---In absence of specific provisions of the limitation for readmission of miscellaneous petition, Art. 181 of the Limitation Act, 1908 is applicable.

(b) Administration of justice---

----Justice demands that valuable rights of the parties need to be agitated upon merits rather than dismissing the matter on technical grounds.

Wazir Mazhar Hussain for Petitioner.

Abdul Hameed for Respondent.

YLR 2022 Gilgit Baltistan Chief Court 2423 #

2022 Y L R 2423

[Gilgit-Baltistan Chief Court]

Before Malik Inayat-ur-Rehman, J

COLLECTOR/DEPUTY COMMISSIONER GILGIT and 2 others---Petitioners

Versus

ABDUL WAHID and 3 others---Respondents

Civil Revision No. 216 of 2019, decided on 25th October, 2021.

(a) Government of Gilgit-Baltistan Order, 2018---

----Art. 86---Writ petition---Infructuous matter--- Maintainability--- Scope---Petitioners assailed order passed by Trial Court whereby their right to file written statement was struck off---Revisional court dismissed the petition---Validity---Order passed by Trial Court was recalled by the trial court and the suit was restored---Petitioners were at liberty to seek their remedy of filing written statement before the Trial Court---Writ petition was dismissed.

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

----S. 115--- Revision petition---Second revision petition--- Maintainability---Scope---Where petitioner had filed revision petition against an order passed in civil first appeal converted into revision by the District Judge, Chief Court observed that second revision petition did not lie in law.

Additional Advocate General for Petitioners.

None appeared for Respondents.

High Court Azad Kashmir

YLR 2022 HIGH COURT AZAD KASHMIR 431 #

2022 Y L R 431

[High Court (AJ&K)]

Before Sadaqat Hussain Raja, C.J.

ABDUL RASHEED MIRZA and others---Petitioners

Versus

COMMISSIONER REHABILITATION AZAD JAMMU AND KASHMIR and others---Respondents

Writ Petitions Nos. 1867, 2377, 2257, 2378 and 2379 of 2021, decided on 10th July, 2021.

(a) Azad Jammu and Kashmir Elections Act (XVIII of 2020)---

----Chap. XI [Ss. 81 to 106-A]---Election disputes---Alternate remedy---Scope---Petitioners challenged the eligibility of rival candidates on different grounds---Validity---Since the election process had started from notification calling the elections and would be complete on declaration of result; every matter arising during such period regarding elections amounted to election dispute---Azad Jammu and Kashmir Elections Act, 2020, had provided a remedy to resolve such disputes by filing election petitions before competent forum---Any verdict of the High Court while exercising writ jurisdiction would affect the rights of the parties as well as of public at large---Points raised in the writ petitions were left open for the Election Tribunal---Writ petitions were disposed of accordingly.

(b) Words and phrases---

----"Election"---Meaning---Scope---Word "election" has both "narrow" and "wide" meanings; in the narrow sense, it amounts to selection of the candidates and in wider sense, it connotes the entire election process starting from issuance of election schedule to the notification of elected candidates and in election disputes it should be used in wider sense.

Raja Asif Bashir Khan and Sahibzada Mehmood Ahmed for Petitioners (in Writ Petitions Nos. 1867 and 2377 of 2021).

Asghar Ali Malik for Respondent No.7 (Nasir Hussain Dar) (in Writ Petitions Nos. 1867 and 2377 of 2021).

Tahir Aziz Khan, Legal Advisor for Election Commission.

Kamran Bashir Chaudhry for Intervener (Suleman Ali son of Dewan Ali) (in Writ Petitions Nos. 1867 and 2377 of 2021).

Syed Shafqat Hussain Gardezi, Raja Asif Bashir Khan and Ahmed Nawaz Tanoli for Petitioners (in Writ Petitions Nos. 2257 and 2378 of 2021).

Tahir Aziz Khan, Legal Advisor for the Official Respondents (in Writ Petitions Nos. 2257 and 2378 of 2021)..

Raja Gul Majeed Khan and Malik Bashir Murad on behalf of Respondent-Bashir Khan (in Writ Petitions Nos. 2257 and 2378 of 2021).

Mushtaq Ahmed Janjua, Nasir Masood Mughal and Sardar Nazim Khan for Petitioner (in Writ Petition No. 2379 of 2021).

Tahir Aziz Khan, Legal Advisor for Election Commission of AJ&K (in Writ Petition No. 2379 of 2021).

YLR 2022 HIGH COURT AZAD KASHMIR 801 #

2022 Y L R 801

[High Court (AJ&K)]

Before Sadaqat Hussain Raja, C.J.

ADEEB TARIQ---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision Petition No. 181 of 2021, decided on 30th November, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 299, 452 & 34---Azad Jammu and Kashmir Arms and Ammunition Act (III of 2016), S. 15---Qatl-i-amd, house-trespass after preparation for hurt, assault or wrongful restraint---Unlicensed possession of arms---Bail, refusal of--- Minority of accused---Scope---Accused sought bail after arrest on the ground of minority---Allegation against accused was that he fired a straight shot on the left arm biceps of the victim who succumbed to the injuries---Perusal of documentary evidence revealed that age of accused, at the time of occurrence, was 17 years and 04 days of age and in such an age a male commonly attains puberty---Accused, by physical appearance, had attained puberty and under S. 299, A.P.C., adult was described as a person who had attained, being a male, the age of eighteen years or had attained puberty, whichever was earlier---Between the words "age of eighteen years" and "puberty" the word "or" was used which clearly reflected that out of the two conditions, the condition whichever came earlier, would be considered to declare a person adult---Mere presentation of statement of accused under S. 265-D, Cr.P.C. and documentary evidence was not sufficient to prove the accused as minor---Except the aforesaid documents no other document regarding medical opinion to prove that accused was not an adult or he had not attained puberty---Accused was not entitled to be released on bail under third proviso to S. 497(1), Cr.P.C.---Petition for grant of bail was dismissed, in circumstances.

2002 MLD 918; 2003 PCr.LJ 711 and PLD 2012 Sindh 147 distinguished.

1993 SCR 108; 2001 PCr.LJ 895; 2021 YLR 753, 1996 SCR 247 and PLD 1986 Sh.C. (AJ&K) 74 ref.

Abdul Aziz Ratalvi for Petitioner-Accused.

Ch. Mahboob Ellahi for the Complainant-Respondent No.1.

YLR 2022 HIGH COURT AZAD KASHMIR 1331 #

2022 Y L R 1331

[High Court (AJ&K)]

Before Chaudhary Khalid Rasheed, J

JEET HUSSAIN and 2 others---Appellants

Versus

JANAT BEGUM and 21 others---Respondents

Civil Appeal No. 110 of 2013, decided on 18th February, 2022.

Specific Relief Act (I of 1877)---

----S. 8---Limitation Act (IX of 1908), Arts. 144 & 142---Suit for possession---Adverse possession---Limitation---Scope---Plaintiff filed suit for possession claiming therein that he was owner of the suit land whereas the defendants were in possession of the land as Ghair Moroosi---Trial Court decreed the suit and Appellate Court dismissed the appeal---Validity---Plaintiff had filed suit on the basis of title on the suit land, so the contention raised by defendant that Art. 142 of Limitation Act, 1908, was attracted, had no force---Article 142 of Limitation Act, 1908, was applicable where plaintiff being originally in possession of property was dispossessed or discontinued to be in possession, whereas, Art. 144 was attracted when suit for possession was based on the essence of title---Time limit for filing a suit as detailed in Art. 144 was twelve years and the same was to be reckoned from the date when possession of defendant became adverse to plaintiff---Possession of the defendants had become adverse to the plaintiff's rights just one month ago---Courts below had accurately decided the issue of limitation---So far as contention of defendants that all the co-sharers were not impleaded was concerned, High Court observed that co-sharers were not necessary or proper party for the reason that nothing was claimed from the co-sharers---Appeal was dismissed.

2017 SCR 733; 2005 YLR 1096; 2012 MLD 86; 2012 YLR 818 and 1986 CLC 1301 distinguished.

2007 SCMR 1510 ref.

Rafiullah Sultani for Appellants.

YLR 2022 HIGH COURT AZAD KASHMIR 1653 #

2022 Y L R 1653

[High Court (AJ&K)]

Before Chaudhary Khalid Rasheed, J

MUHAMMAD ZULQARNAIN and 11 others---Petitioners

Versus

MUHAMMAD PERVAIZ KHAN and 13 others---Respondents

Writ Petition No. 37 of 2009, decided on 18th February, 2022.

Azad Jammu and Kashmir Regularization of Nautors and Grant of Khalsa Land Ordinance (VI of 1974)---

----Ss. 2(v), 2(ix) & 3---Land Ghair Mumkin Charand---Village common purposes---Jamabandi, presumption of correctness---Petitioner contended that the private respondents never remained in possession of the said land; that order of the Member Board of Revenue was not speaking order; that one of the respondents being employee of the Revenue Department maneuvered the entries in the Khasra Girdawari but in Jamabandi the respondents were not entered as in continuous possession of the land; and that land demarcated for common purposes under Regularization and Grant of Khalsa Land Ordinance, 1974, could not be sanctioned in favour of any person---Member Board of Revenue reversed the order of the Additional Commissioner--- Validity--- Land in question was entered as Ghair Mumkin Charand (grazing land) in the Jamabandi which was used for village common purpose excluded from the definition of Khalsa Land---Such land could not be regularized under S.3 of the Ordinance, 1974---Member Board of Revenue did not deny the fact that the land in question would come within the category of Ghair Mumkin Charand (grazing land)---Member Board of Revenue reversed the findings of Additional Commissioner on the basis of entries in the Khasra Girdawaries despite the fact that presumption of truth would be attached with Jamabandi and not with Girdawaries---According to the report of Girdawar petitioners were in possession of the disputed land for the last 40 years in shape of houses/growing crops---Said report also revealed that private respondents managed to get entries of their possession in the Khasra Girdawaries which flagrantly negated by the entries in Jamabandi---Member Board of Revenue had failed to pass a well-reasoned/speaking order whereas the order passed by Additional Commissioner was a detailed/well-reasoned which entailed to be upheld---Writ petition was accepted accordingly.

2005 CLC 176 and PLD 1992 Lah. 345 rel.

Sardar Ghulam Mustafa for Petitioners.

YLR 2022 HIGH COURT AZAD KASHMIR 1669 #

2022 Y L R 1669

[High Court (AJ&K)]

Before Sardar Muhammad Ejaz Khan, J

GHULAM RAZA LATIF---Petitioner

Versus

MUHAMMAD ABBAS KHAN and another---Respondents

Writ Petition No. 32 of 2021, decided on 31st March, 2022.

(a) Azad Jammu and Kashmir Rent Restriction Act (XIII of 1986)---

----S. 14--- Eviction of tenant---Tentative rent, determination of---Maintainability--- Scope--- Rent Controller while passing the impugned order for fixation of tentative rent had not committed any illegality or perversity because sub-section (8) of S. 14 of the Azad Jammu and Kashmir Rent Restriction Act, 1986, had empowered the Rent Controller to determine approximate amount and direct the tenant to pay the determined amount to landlord---Petitioner neither seemed to be an aggrieved party within the meaning of Art. 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 nor had he any locus standi to invoke the extra-ordinary jurisdiction of the High Court by way of writ petition---Writ petition was dismissed.

2020 SCMR 260 ref.

PLD 1988 Quetta 42; 1995 MLD 298; 2011 CLC 273 and 2011 CLC 1779 distinguished.

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

----Art. 44--- Writ petition--- Interim order---Maintainability--- Scope--- When the special law does not provide the right of appeal against an interlocutory order, the same cannot be challenged by invoking the writ jurisdiction of the High Court---However, extraordinary jurisdiction of the High Court by way of writ petition can be exercised in extra-ordinary situation and in exceptional circumstances where any flagrant violation of law, jurisdictional defect or patent illegality appears to have been found on the face of record, as such, the same cannot be invoked in a routine manner.

----Art. 44---Writ petition---Scope---Writ petition lies where any violation of rules and departure of law has been made.

Rizwan Farooq and Sardar Bilal Shakeel for Petitioner.

YLR 2022 HIGH COURT AZAD KASHMIR 1746 #

2022 Y L R 1746

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

Syed MOHAMMAD RIZWAN SHAH and another---Petitioners

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 5 others---Respondents

Writ Petitions Nos. 127 of 2020, 1713, 1712 of 2019, decided on 12th April, 2022.

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

----Art. 4(4)(15)---Equality of State Subjects---Public functionaries---Scope---Government functionaries cannot exercise any discretion to become selective, discriminatory and distinctive in applying their discretion with reference to the persons within one class and where conditions for extending benefits of such decisions are the same for all that particular class of persons.

2002 CLC 113 ref.

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

----Art. 4(4)(15)---Equality of State Subjects---Scope---Doctrine of "equality before the law and equal protection" is the anchor sheet of the Constitution, it prescribes that every citizen of the State is to be equally treated and is to enjoy equal protection---Said theory prevents discriminatory treatment of individual or a group of individuals at the expenses of other individuals or classes of the people similarly situated---Even handed, fair treatment to every citizen is ordained by the Azad Jammu and Kashmir Interim Constitution Act, 1974, in clear terms.

----State is not fiefdom of any person howsoever high he may be, everybody is under the law, nobody is above it---In fact, all public power is a trust and has to be exercised fairly, honestly and in the interest of public.

(d) General Clauses Act (X of 1897)---

----S. 24-A---Reasons for decision---Discretionary jurisdiction---Scope---Discretion is not absolute, it is always deemed to be coached by the settled principles of law in a fair and proper manner leaving no room for any sort of arbitrariness.

(e) Public functionaries---

----Dispensation of justice is not only to be administered by the Courts of law but by every organ and functionary of the State in whichever capacity he is performing any duty---Obligatory upon public functionary to do justice in performance of his assigned liabilities.

Tariq Mehmood Mirza and others v. Azad Government and others 2020 SCR 538 ref.

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

----Art. 42-B---Decisions of Supreme Court binding on other Courts---Scope---Judgment/decision of the Supreme Court is binding upon all the state functionaries, as well as upon every Court in view of Art. 42-B of the Azad Jammu and Kashmir Interim Constitution Act, 1974.

Raja Mohammad Hanif Khan for Petitioners (in all the Writ Petitions).

Raja Mohammad Nawaz Khan, Legal Advisor for the Finance Department.

Legal Advisor for the Services and General Administration Department.

YLR 2022 HIGH COURT AZAD KASHMIR 1771 #

2022 Y L R 1771

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

NOMAN ASHRAF---Petitioner

Versus

Sardar NAZAR MUHAMMAD KHAN and 2 others---Respondents

Writ Petition No. 4275 of 2021, decided on 3rd March, 2022.

(a) Azad Jammu and Kashmir Rent Restriction Act (XIII of 1986)---

----S. 20---Ejectment of tenant and recovery of arrears of rent---Respondent/ landlord claimed that petitioner/tenant only paid rent of one month after execution of tenancy deed and he had defaulted in payment of rent for 3 months besides electricity bills were also outstanding on part of the tenant---Both the Courts below ordered for ejectment---Counsel of answering respondent drew Court's attention to the fact that respondent had passed away and the present petition had been filed against the dead person, therefore, question to be determined was whether the writ petition was maintainable against a dead person particularly when his legal heirs were alive and the petitioner even after the objection raised at bar did not bother to seek time for bringing on record the legal heirs of the deceased landlord/ respondent---Held, that matters pertaining to rent issues were governed by a special law on the subject i.e. the Azad Jammu and Kashmir Rent Restriction Act, 1986---Under S. 20 of the Act, certain provisions of Civil Procedure Code, 1908, had been expressly made applicable regarding summoning and enforcing the attendance of witnesses----However, no other provisions of the C.P.C. including O. XXII thereof had been made applicable---Rent Controller, therefore, had ample power to adapt any procedural mode regarding the lis pending before him as well as the appellate fora---Order passed by the Rent Controller and Appellate Authority could not be regarded as violation of law calling for interference in exercise of writ jurisdiction---Writ petition was dismissed accordingly.

1993 CLC 1042; 1998 CLC 1574; PLD 1975 Lah. 1195; 1998 MLD 429 and 1999 YLR 275 rel.

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

----Art. 44---Fundamental rights---Rights to continue after demise---Despite passing away of a person, rights/liabilities could not vanish and pending disputes were always liable to be decided in accordance with law, especially, when legal heirs were present having interest in the matter to face the consequences pro or contra.

----Art. 44---Constitutional jurisdiction---Concurrent findings of foras below---Scope---Although doctrine of ubi jus ibi remedium envisaged that where there was infringement of right there was a remedy but all sort of grievances in bulk could not be remedied in extra ordinary constitutional jurisdiction without adhering to the limits required by Art. 44 of Azad Jammu and Kashmir Interim Constitution Act, 1974 in this regard---Particularly as to embark upon the concurrent findings of two judicial or quasi judicial forums then there must have some cogent reasons to set at naught or reverse such findings.

Mirza Kamran Baig for Petitioner.

YLR 2022 HIGH COURT AZAD KASHMIR 1891 #

2022 Y L R 1891

[High Court (AJ&K)]

Before Sadaqat Hussain Raja, C.J.

KHURRUM SHAHZAD---Petitioner

Versus

SENIOR SUPERINTENDENT POLICE, DISTRICT MIRPUR AZAD KASHMIR and 2 others---Respondents

Writ Petition No.2585 of 2021, decided on 2nd September, 2021.

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

----Art. 44---Writ petition---Quashing of FIR---Scope---Petitioner sought quashing of FIR lodged against him---Allegations levelled in the FIR related to facts and the matter could only be resolved after detailed investigation---High Court could not declare the accused to be innocent and could not quash the FIR---Matter was being investigated by the investigation agency and High Court could not interfere into the investigation proceedings and stop the same---Investigation agency was not to be stopped from investigating into a criminal offence by way of filing a writ petition---Petition was dismissed.

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

----Art. 44---Writ petition---Quashing of FIR---Scope---High Court is vested with powers to quash FIR if on the face of it no offence appears to have been committed or it appears that the FIR has been lodged with mala fide intention and there is no likelihood of conviction of accused, however, if the case requires detailed probe, High Court does not interfere into the investigation proceedings and hamper the investigation agency.

Arsalan Raja and 5 others v. The State and 3 others 2020 SCR 336 rel.

----Ss. 154 & 156---Information in cognizable cases---Investigation into cognizable cases---Scope---Incharge of concerned police station is duty bound to register FIR on receiving information of any cognizable offence and conduct investigation in accordance with law---Officer incharge of the police station is required by law to record the same in writing, irrespective of the fact that the information which he had received is correct or otherwise---After registration of the case/FIR, any officer incharge of police station will investigate the matter according to S. 156, Cr.P.C.---Investigation regarding the commission of offence is the duty as well as the prerogative of the police to investigate into the matter whenever a report is made to it and it is for the Investigating Officer to conclude the matter in view of oral and documentary evidence.

Mirza Kamran Baig for Petitioner.

Sajid Hussain Abbasi for private Respondent.

YLR 2022 HIGH COURT AZAD KASHMIR 2011 #

2022 Y L R 2373

[High Court (AJ&K)]

Before Mian Arif Hussain, J

MUHAMMAD BASHIR---Appellant

Versus

The STATE through Muhammad Saeed Khan and another---Respondents

Criminal Appeal No. 52 of 2022, decided on 30th May, 2022.

Criminal Procedure Code (V of 1898)---

----S. 497---Azad Jammu and Kashmir Offences Against Property (Enforcement of Hudood) Act (XII of 1985), S. 20---Penal Code (XLV of 1860), Ss. 354 & 458---Haraabah---Assault or criminal force to woman with intent to outrage her modesty---Lurking house-trespass or house breaking by night after preparation for hurt, assault or wrongful restraint---Bail, refusal of---Scope---Accused along with others was alleged to have committed dacoity---Accused was investigated on suspicion and was found guilty---Family members of the complainant had also identified the accused---Dagger and a certain amount was also recovered from the possession of the accused---So far as the plea of non-determination of role of the accused was concerned, High Court observed that in the offences of robbery, dacoity, etc. individual role of an accused did not matter much and every participant regardless of his role could be considered an accused of equal share---No mala fide intent or motive was found on the part of the complainant to falsely implicate the accused---Investigation had not been concluded so far and in terms of penalty provided for the offences, the matter fell within the ambit of prohibitory clause of S. 497, Cr.P.C.---Accused was not entitled for the concession of bail---Appeal was dismissed.

Fayaz Ahmed Janjua for Appellant.

Raja Muhammad Manzoor Khan for the Complainant.

YLR 2022 HIGH COURT AZAD KASHMIR 2042 #

2022 Y L R 2042

[High Court (AJ&K)]

Before Chaudhary Khalid Rasheed, J

MUHAMMAD ILYAS---Appellant

Versus

STATE through Advocate General/Additional Advocate General

and another---Respondents

Appeal No. 2 of 2022, decided on 29th April, 2022.

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

----S. 458---Offences Against Property (Enforcement of Hudood) Act (XII of 1985), S. 20---Lurking house-trespass or house-breaking by night after preparation for hurt, assault or wrongful restraint---Haraabah liable to tazir---Appreciation of evidence---Benefit of doubt---Scope---Prosecution case was that the accused along with co-accused had designed and plotted dacoity in the house of the complainant---Prosecution case revolved around the central axis of recovery of the stolen articles---Statements of marginal witnesses of recovery memo. and complainant had put considerable question marks on the whole prosecution story---Marginal witnesses had admitted that the recovery memo was prepared and signed at the police station---Stand taken by the prosecution that stolen articles were recovered at the indication of accused from his house was blatantly refuted and denied---After excluding the recoveries of stolen articles on the indication of accused nothing remained with the prosecution to justify the conviction of accused---Court below had fallen in error while convicting the accused because prosecution had failed to prove the guilt of the accused to hilt and to prove its case beyond shadow of rational or plausible doubt---Accused was neither nominated in the FIR nor identification parade was conducted thus the sole evidence relied upon by the prosecution was recoveries of stolen articles which was not prepared in accordance with the required standard that could justify or vindicate conviction---Designing and planning to commit the dacoity amongst the accused persons was not proved---Co-accused was acquitted by the court below while discrediting the evidence harvested by the prosecution, however, on the basis of same and identical evidence the accused was convicted which was unjustified---Appeal was accepted and the accused was acquitted of the charges, in circumstances.

PLJ 2019 SC 265 ref.

(b) Criminal trial---

----Benefit of doubt---Scope---Benefit of a slightest doubt has to be resolved in favour of an accused not ex-gratia but as a matter of right.

2014 SCR 351 and 2017 SCR 428 ref.

Raja Muhammad Mehfooz for Appellant.

Muhammad Khalil Ghazi, A.A.G. for the respondents.

YLR 2022 HIGH COURT AZAD KASHMIR 2059 #

2022 Y L R 2059

[High Court (AJ&K)]

Before Chaudhary Khalid Rasheed, J

KHALIL KHAN and another---Appellants

Versus

FAZALDAD KHAN and 4 others---Respondents

Civil Appeal No.59 of 2014, decided on 18th February, 2022.

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

----Arts. 18, 113, 117 & 118---Mutation, cancellation of---Family-tree admitted---Burden to prove mutation---Mutation attested by revenue authorities was alleged to have not been in accordance with the principle of inheritance/family-tree mentioned in the plaint; that predecessor of the deceased had one son and two daughters; that son and one daughter were expired before the death of second daughter; that the appellants only remained among the legal heirs of third daughter and the respondents did not come within the category of sharers/ residuary--- Plaint was concurrently dismissed---Appellant/plaintiff contended that respondents managed to register the impugned mutation showing themselves as among the half share-holders/legal heirs of the deceased; that respondents did not come within the list of legal heirs of the deceased; that the said original family-tree of the deceased as produced in the plaint was admitted in the written statement filed by the respondents; that respondents failed to prove any relationship with the deceased; that the family-tree printed on the front side of the mutation was in negation of the tree illuminated on the back of the same---Validity---Held, observations of both the Courts below that suit was hit by the limitation and that impugned mutation was attested after the death of third daughters were not sustainable---No limitation would run against the right of inheritance---Point required to be determined was whether at time of the death of first and third daughters were alive or not---Record/admitted the fact that were third daughter had died which blatantly proved that at the time of death of first daughter and second one who expired before the third was alive---It would make no difference if at the time of attestation of mutation third daughter was alive or died---Registration of mutation was not a precondition to claim the right of inheritance---As soon as a person of Muslim Faith died his/her legal heirs step into his/her shoes regardless of fact that whether mutation had been attested or not---Mutation would not itself confer any title and it was only maintained for realization of land revenue---Being beneficiaries of impugned mutation, respondents had to prove their relationship with first daughter ---Mutation was not trustworthy as the family-tree chalked on front page of the mutation was totally out of line from that engraved at its reverse---Family-tree referred in the plaint was admitted/ endorsed by the respondents in written statement/Court statement, which turned it into an admitted piece of evidence requiring no further proof---Appeal was accepted accordingly.

2002 CLC 587; 2012 YLR 713; 2007 SCMR 635; PLD 1984 SC (AJ&K) 138;PLD 2009 SC (AJ&K) 13; 1991 MLD 2389; 2017 CLC 996 and 2010 PLC (C.S.) 1264 rel.

(b) Islamic law---

----Inheritance---Residuary, absence of---Radd/return to the sharers---Principle---If there was a residue left after satisfying claims of sharers but there was no residuary, the residue revert to the sharers in proportion to their share and this right of reverter was technically called return or "radd".

----Inheritance---No residuary---Radd/ return to the sole daughter---Principle---Where there was no sharer by blood/ residuary/distant kindred person but only a sole surviving daughter, the daughter was entitled to inherit share in the estate of deceased as per the Islamic Law and by the principle of radd she would also take remainder---Absence of residuary entitled such a daughter being sole sharer to take the whole share keeping in view the principle of radd.

1980 CLC 121; 1990 MLD 725 and PLD 1986 Kar. 269 ref.

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

----O. I, R. 1---Revenue authorities---When no rights of Revenue authority was disturbed and nothing was claimed which could prejudice the rights of the Revenue department, declaration could be awarded to settle the controversy involved between the parties.

Raja Rafiullah Sultani for Appellants.

YLR 2022 HIGH COURT AZAD KASHMIR 2373 #

2022 Y L R 2011

[High Court (AJ&K)]

Before Sardar Muhammad Ejaz Khan, J

TALHA NAFEES and others--- Appellant

Versus

BUSHRA BOSTAN and 3 others---Respondents

Family Appeals Nos.31, 32 and 33 of 2018, decided on 18th March, 2022.

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

----S. 5, Sched.---Dissolution of Muslim Marriages Act (VIII of 1939), Ss. 2(ii), (iv), (viii)a & (viii)f---Suits for Dissolution of marriage and recovery of dowry articles by respondent/wife and suit for restitution of conjugal rights was filed by appellant (the husband)---Trial Court decreed the respondent's suits and dismissed the appellant's for want of proof--- Validity--- Admittedly, appeal against the judgment in suit for maintenance allowance had been passed by High Court after deep scrutiny of record---Record further showed that during the period of their stay together, behaviour of appellant with respondent remained hostile while he did not pay single penny to her since her desertion and he on one pretexts or the other left her in a Madrassa for religious education to avoid the expenses of maintenance allowance and thereafter, he also contracted second marriage---Respondent proved the factum of desertion, non-performance of matrimonial obligations and non-payment of maintenance allowance through reliable/convincing evidence---Appellant's witnesses admitted the respondent's claim stating that at time of marriage, dowry articles in a loaded Truck having worth more than Rs.2,00,000/- were given by the parents of plaintiff respondent; and that respondent's dowry articles were in use of second wife of the appellant---Amount of the articles as per list was Rs.209935/- and in case of appellant's failing, after 30% reduction on account of principle of depreciation, she had to be entitled to receive the amount of Rs.135450/---Instead of referring to the principle of depreciation, Trial Court fixed the entitlement of the respondent after 30% deduction from total amount---High Court modified the impugned judgment/ decree to such extent only and dismissed the appeals on the rest of ground.

Sardar Hamid Raza Khan for Appellant.

YLR 2022 HIGH COURT AZAD KASHMIR 2446 #

2022 Y L R 2446

[High Court (AJ&K)]

Before Sardar Muhammad Ejaz Khan, J

MUHAMMAD AYAZ---Applicant

Versus

AZHAR MEHMOOD---Respondent

Criminal Miscellaneous Application No. 75 of 2022, decided on 7th April, 2022.

Civil Procedure Code (V of 1908)---

----O.XLI, R. 19---Appeal dismissed for default--- Re-admission--- Sufficient cause--- Scope--- Applicant / Appellant sought restoration of appeal dismissed for non-prosecution--- Contention of applicant was that he could not appear before the Court because of his ailment and he was under the impression that his counsel would appear before the Court---Validity---Ground agitated by the applicant did not establish sufficient cause, rather it was prime responsibility of the applicant to prosecute his case efficiently and diligently, hence, he could not deviate from his legal duty because his absence was also questionable that how he did not appear before the Court when the case was called on for hearing and in that regard, grounds of application and personal affidavit were quite silent---Application was dismissed, in circumstances.

Kh. Ghulam Qadir and another v. Muhammad Sharif and 11 others 2000 MLD 2047; Azad Jammu and Kashmir Government and 10 others v. Abdul Rashid and 5 others 2002 CLC 1662 and Muhammad Kabir Khan v. Mst. Anees Begum 2005 SCR 23 rel.

Sardar Arslan Nisar for Applicant.

YLR 2022 HIGH COURT AZAD KASHMIR 2487 #

2022 Y L R 2487

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

SABIR HUSSAIN---Appellant

Versus

The STATE through Advocate General and 4 others---Respondents

Criminal Appeal No. 68 of 2019, decided on 2nd June, 2022.

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

----Ss. 10, 11 & 19---Offence of zina, kidnapping or abducting a woman for illicit relations, etc.---Appeal against acquittal---Scope---Appellant assailed the acquittal of respondents in a case lodged under Ss. 10, 11 & 19 of Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Act, 1985---Statements of prosecution witnesses had not supported the alleged crime---Statement of the Lady Doctor revealed that no proof of 'zina' was found---Alleged victim had admitted her picture and signature on free-will affidavit, which was attested by an Ex-officio Justice of Peace---Signatures on Nikahnama were admitted and the same was also registered---Case of prosecution was doubtful---Impugned acquittal order did not warrant any interference---Appeal was dismissed.

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

----S. 417---Appeal against acquittal---Scope---Until an acquittal order is found perverse, arbitrary and fanciful same cannot be interfered with.

----S. 417---Appeal against acquittal---Scope---Double presumption acquired by accused in the shape of acquittal qua his innocence cannot be shattered normally.

(d) Criminal trial---

----Burden of proof---Scope---Onus to prove allegations is always upon the shoulders of prosecution in a manner to prove the case against accused without any shadow of doubt---Any doubt or loophole in the case is to be resolved in favour of the accused---Acquittal enhances this presumption in his favour qua pressing his innocence---Rationale of this principle of law is entrenched in Islamic Law of criminal dispensation of justice.

Nemo for the appellant.

Haider Rasheed Mughal, A.A.G on behalf of the State.

Islamabad

YLR 2022 ISLAMABAD 1 #

2022 Y L R 1

[Islamabad]

Before Athar Minallah, C.J.

FARHAN MUSTAFA---Petitioner

Versus

The STATE and others---Respondents

Writ Petition No. 3877 of 2019 (and other connected Petitions), decided on 7th December, 2020.

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

----Preamble--- Pakistan Environmental Protection Act (XXVII of 1997), Preamble---Land Acquisition Act (I of 1894), Preamble---Constitution of Pakistan, Arts. 199, 9, 14, 23 & 24---Allegations of the petitioner were that a Company was involved in massive land grabbing and other illegal activities with direct and indirect support of the police, revenue officials and the regulator; that private armed people were dispossessing citizens of their properties and that too of land which had been acquired but compensation relating to built up properties was yet to be paid to the affected owners; the competent authorities had not completed the acquisition proceedings under the law and that the private armed persons had no authority to take the law in their hands on behalf of the Company by depriving citizens of their rights; it was asserted that the public functionaries and officials of the Authority were facilitating the Company in violating the rights of the citizens who were in possession of their ancestral properties---Record showed that the petitioner filed application (CM) along therewith an affidavit executed, amongst others, by the Chief Executive of the Company was attached, stating therein that settlement was arrived at in a 'jirga' and that the Company had removed the illegal obstruction to the property of the petitioner and that an assurance was given that the access to the property would not be interfered with---On the basis of that settlement deed it was prayed by the company that the petitioner might be allowed to withdraw his petition---Validity---Held, said conduct of the Company was an affirmation of the grievance of the petitioner---Authority, as a statutory entity, had to act in the public interest---Grievances of the petitioners were regarding gross violations of constitutionally guaranteed rights, failure of the State and its institutions to protect them---Grievances were affirmed during the proceedings---Most disturbing grievance was absence of rule of law and treating the company as being above the law---In the present case, the Authority breached that pivotal obligation---Capital Development Authority Ordinance, 1960 empowered the Authority to acquire land pursuant to preparing a scheme and such land then vested in the State---In the present case, several applications were filed by persons claiming to be innocent bona fide purchasers and thus supporting the case of the Company---Could they be treated as bona fide purchasers and thus made a reason for condoning the gross illegalities and abuse of authority and law by the Company and the Board of the Authority---Purported "No Objection Certificate" explicitly barred the Company from giving possession of plots till the scheme was completed and the completion certificate had been issued---No construction could have commenced without obtaining permission and approval under the Ordinance of 1960 and the Regulations framed thereunder---No legal right had accrued in favour of the purchasers to claim condoning of the gross illegalities by the Company and the Authority, however, the grievances of the petitioners were regarding gross violations of constitutionally guaranteed rights, failure of the State and its institutions to protect them---Grievances were affirmed during the proceedings---Crucial grievance was absence of rule of law and treating the Company as being above the law, thus, land acquired under the Ordinance of 1960 vested in the State and it could not be used, directly or indirectly, in violation of the scheme and provisions thereof---Acquired land could not have been used as a tool to overcome the condition precedent for obtaining "No Objection Certificate"---"No Objection Certificate" was thus illegal, void and issued without lawful authority and jurisdiction---Acts of the company regarding the acquired land were and continue to be illegal, void and in violation of Fundamental Rights of public at large and in breach of public interest---Concerned authorities were directed by the High Court to remove all the obstructions attributed to the Company on the acquired land---Company was not capable of completing the Housing Scheme till it had fulfilled all the conditions required for becoming eligible to obtain a "No Objection Certificate"--- High Court further directed that Board of Authority shall take appropriate decisions regarding the Housing Scheme in accordance with the provisions of the Ordinance of 1960 and the Regulations made thereunder inter alia, having regard to the enforced laws which guard against environmental degradation---Concerned Authority shall resolve the complaints regarding land grabbing, obstructing rights of way and other property rights of the citizens---Concerned Authority shall put in place an effective mechanism to redress the complaints of citizens affected by the illegal activities and actions of the Company or those acting on its behalf---To prevent the phenomenon of land grabbing and other violations of property rights in the un-acquired land, Authority shall initiate a process of demarcating the acquired land that vested in the State---Authorities shall retrieve any such land which might be either in the illegal possession of the company or any other private person---All the concerned Authorities shall be responsible, if the phenomenon of land grabbing and illegal dispossession continues within the 1400 square mile area of the Capital Territory---Federal Government would take appropriate decisions regarding initiating a probe relating to the gross illegalities committed in the case in hand and make it an example for restoring rule of law within 1400 square mile area of the Capital of the country---Exemplary accountability would be ensured of those who have caused irretrievable damage and violated the constitutionally guaranteed rights of the citizens---Federal Cabinet was expected to take appropriate decisions for making the Environmental Protection Agency an effective and independent statutory regulator for environmental protection under the Pakistan Environmental Protection Act, 1997---To prevent adverse environmental impact and abuse of power, Federal Cabinet was expected to set the wheel of law in motion to fulfil the crucial requirements for the actors to accept responsibility and be accountable for their actions---Federal Cabinet was expected to direct the Authority to strictly abide by the laws enforced for guarding against environmental degradation and to prevent further harm to the environment, which violated the rights of life of the citizens---Petitions were allowed and disposed of in said terms.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court--- Scope--- Effect--- Waiver---Laches---Power of High Court to issue appropriate writ, order or direction is discretionary---One of the grounds on which relief can be refused by Court exercising writ jurisdiction is when the petitioner is guilty of delay and laches---Petitioner, when invokes extraordinary remedy under Art. 199 of the Constitution, then he should come to the Court at the earliest possible opportunity---Inordinate delay in making the motion for a writ is indeed an adequate ground for refusing to exercise discretion in favour of the petitioner, thus, when the petitioner is guilty of laches or undue delay in approaching the High Court, the principle of laches or undue delay disentitles the petitioner from discretionary relief under Article 199 of the Constitution from the High Court, particularly, when there is no plausible explanation on the petitioner's part for his blame-worthy conduct of approaching the High Court with undue delay---Court cannot come to the rescue of persons, who are not vigilant regarding their rights, however, it is unjust to give the petitioner a remedy where, by his conduct, he has done that which may fairly be regarded as equivalent to "waiver".

----Scope---Principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated---Rule of law also requires measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of law, legal certainty, avoidance of arbitrariness and procedural and legal transparency---Quality of governance and protection of rights of citizens are the paramount measure of the status of rule of law---Law is a body of rules and conduct prescribed by competent forums and they have binding force---Law and rules must be obeyed and followed and a breach thereof attracts sanctions and legal consequences---Laws are promulgated and enforced to protect the rights and liberties of the citizens and to maintain order in society.

Al-Haaj Raees Ahmad Qureshi v. Water and Sanitation Agency (W.A.S.A.) 2005 YLR 326; Gouriet v. Union of Post Office Workers [1977] 1 All ER 696; Park View Enclave (Pvt.) Ltd. v. C.D.A. and others 2018 CLC 947; Suo Motu Case No. 10 of 2007 [PLD 2008 SC 673]; Raja Muhammad Nadeem v. The State and another PLD 2020 SC 282; Dr. Imran Khattak v. Ms. Sofia Waqar Khattak, PSO to Chief Justice and others 2014 SCMR 122; Shahnaz Begum v. The Hon'ble Justice of the High Court of Sindh and Balochistan and another PLD 1971 SC 677; Premier Battery Industries Private Limited v. Karachi Water and Sewerages Board and others 2018 SCMR 365; Muhammad Shafique Khan Swati v. Federation of Pakistan through Secretary Ministry of Water and Power, Islamabad and others 2015 SCMR 851; Echo West International (Pvt.) Ltd. Lahore v. Government of Punjab through its Secretary and 4 others 2009 CLD 937; Javed Ibrahim Paracha v. Federation of Pakistan and others PLD 2004 SC 482; Prof. Muhammad Usman and others v. Punjab University Academic Staff Association and others 1991 SCMR 320; Akhtar Abbas and others v. Nayyar Hussain 1982 SCMR 549; Shahzada Sikandar ul Mulk and 4 others v. Capital Development Authority and 4 others PLD 2019 Isl. 365; Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division PLD 2012 SC 132; PLD 2010 SC 759; Capital Development Authority through Chairman and others v. Dr. Abdul Qadeer Khan and others 1999 SCMR 2636; Saad Mazhar v. Capital Development Authority 2005 SCMR 1973; Moulvi Iqbal Haider v. Capital Development Authority PLD 2006 SC 394; Muhammad Ikhlaq Memon v. Capital Development Authority 2015 SCMR 294 and Suo Motu Case No. 13 of 2009 [PLD 2011 SC 619] rel.

(d) Rule of law---

----Accountability---Principle--- Account-ability is not merely restricted to the public functionaries alone---Citizen who takes the risk of violating the law is not immune because every person is presumed and ought to know the law---If rule of law is to be restored and constitutionally guaranteed rights of the citizens are to be protected then the practice of condoning gross violations of the law have to end, hence, there must be a policy of zero tolerance for violations of the law and strict accountability of those who opt to jeopardize the constitutionally guaranteed rights of the law abiding citizens.

(e) Constitution of Pakistan---

----Art. 199---Constitutional petition---Suo motu powers of High Court---Scope---Suo motu powers cannot be exercised by High Court under Art. 199 of the Constitution.

Javed Iqbal Khan, Syed Wusatul Hassan Shah and Raja M. Shafait Abbasi for Petitioners.

Afnan Karim Kundi and Intaizar Hussain Panjutha for respondent/CDA for Respondents.

Ali Raza, Syed Ali Zafar,Naseem Ahmed Shah, Khawaja Ahmed Tariq Tahim, Khawaja Azhar Siddique, Hassan Ahmed, Maryam Ali Abbasi and Ch. Hafeez Ullah Yaqub for Respondents.

Syed Muhammad Tayyab, D.A.G. and Rabi bin Tariq, State Counsel.

Dr. Shahid, Member Planning CDA, Gohar Zaman, Assistant Commissioner (Saddar), Mian Imran, SHO Bani Gala and Khurram Aslam, Sub-Inspector.

YLR 2022 ISLAMABAD 112 #

2022 Y L R 112

[Islamabad]

Before Lubna Saleem Pervez, J

Syed SAJID HUSSAIN---Petitioner

Versus

EX-OFFICIO JUSTICE OF PEACE/ADDITIONAL SESSIONS JUDGE-IX, WEST, ISLAMABAD and 5 others---Respondents

Writ Petition No. 3190 of 2020, decided on 11th January, 2021.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 154---Justice of Peace, powers of---Information in cognizable cases---Scope---Petitioner assailed the dismissal of his application under S.22-A, Cr.P.C.---Petitioner had a dispute regarding a house with the proposed accused who was owner of the house---Petitioner had entered into an agreement to sell, paid certain amount as part consideration and obtained possession of a portion of the house---Petitioner had filed a suit for specific performance and had also filed a complaint to police for registration of FIR under Ss. 420, 441, 341, 342, 506 & 380, P.P.C.---Police after investigating the matter had closed the inquiry on the ground that the parties were contesting civil suits before the Civil Court and the Justice of Peace had dismissed the petition under S.22-A, Cr.P.C.---Station House Officer had no power to refuse the registration of FIR, if he was informed orally or in writing regarding commission of a cognizable offence---No bar existed on initiating civil and criminal proceedings simultaneously as both could run side by side with varying results---Role of Justice of Peace under S.22-A(6), Cr.P.C., was limited to the extent of scrutinizing the case just to see as to whether a cognizable offence was made out on the basis of information provided by the informer---Justice of Peace was not authorized to initiate independent investigation to ascertain the veracity of information/complaint---Justice of Peace and police authorities had exceeded their jurisdiction provided under the law---Constitutional petition was allowed, in circumstances and the SHO was directed to register FIR in pursuance of the complaint.

Mst. Sughran Bibi v. The State PLD 2018 SC 595 ref.

Muhammad Bashir v. Station House Officer, Okara Cantt PLD 2007 SC 539; Ashiq Hussain v. Justice of Peace, Alipur 2010 YLR 774; Yousuf Khan v. The State 2012 PCr.LJ 383; Muhammad Hanif's case 2013 PCr.LJ 449; Seema Fareed v. The State 2008 SCMR 839 and Rab Nawaz v. Station House Officer Police Station Dharki 2012 MLD 736 rel.

Taimoor Aslam Khan for Petitioner.

Ms. Bushra Tariq Raja, State Counsel for Respondents.

YLR 2022 ISLAMABAD 144 #

2022 Y L R 144

[Islamabad]

Before Tariq Mehmood Jahangiri, J

FARMAN ULLAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 5-B of 2021, decided on 11th January, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 381-A & 411---Theft of car or other motor vehicles---Dishonestly receiving stolen property---Bail, grant of---Delayed FIR---Scope---Allegation against accused was that he committed the theft of the motorcycle of complainant and later on it was recovered at the instance of accused---No evidence of theft of motorcycle existed---Even the FIR was not registered immediately after the occurrence rather the complainant had identified his motorcycle in the police station, whereupon FIR was registered---Section 381-A, P.P.C. was not attracted and the case fell only under S. 411, P.P.C., the punishment whereof was provided as three years, or with fine or with both which did not fall under prohibitory clause of S.497, Cr.P.C.---Police record was also silent that when and from where the stolen motorcycle was got recovered by the accused---Ultimate conviction could repair the wrong caused by mistaken relief but no satisfactory reparation could be offered to the accused for his unjustified incarceration if he was acquitted ultimately---Accused had made out a case of further inquiry as envisaged under S. 497(2), Cr.P.C.---Bail application was accepted, in circumstances.

2011 SCMR 1708; 2016 SCMR 1439; 2020 SCMR 1258 and 2020 SCMR 717 ref.

Muhammad Tanveer v. The State and another PLD 2017 SC 733 and Tariq Bashir and others v. The State PLD 1995 SC 34 rel.

Raja Fakhar Ajaz for Petitioner/ accused.

Zohaib Hassan Tanoli, State Counsel.

YLR 2022 ISLAMABAD 310 #

2022 Y L R 310

[Islamabad]

Before Fiaz Ahmad Anjum Jandran, J

ALI AKHTER HUSSAIN SHAH---Petitioner

Versus

MODEL PROJECT (PVT.) LIMITED through Chief Executive Officer and 6 others---Respondents

Writ Petition No. 3078 of 2020, decided on 25th May, 2021.

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

----Ss. 96, 2(2) & O. VII, R. 11---Constitution of Pakistan, Art. 199---Constitutional petition---Rejection of plaint--- Appealable order---Decree---Maintainability---Alternate remedy---Statutory remedy---Scope---Petitioner assailed the dismissal of his suit---Validity---Suit was dismissed in terms of O. VII R. 11(d) of the C.P.C., which had made the impugned order appealable in terms of S. 96 of the Code of Civil Procedure as the expression "decree" envisaged in S.2(2) of C.P.C. included rejection of the plaint---Order impugned, therefore, for all intents and purposes was appealable in terms of S.96 of the Code of Civil Procedure--- One of the material requirements for availing remedy under Art. 199 of the Constitution was when no other alternative, efficacious remedy was available---Constitutional petition in the present case was filed when not only adequate and efficacious but a statutory remedy was available---Trial Court, however, had not prepared the decree sheet---No person could be allowed to suffer or his right be prejudiced on account of an act of the court---Drawing up of a decree was the duty of the Trial Court and there was no provision in the Code of Civil Procedure which prescribed a time for drawing a decree---Trial Court was directed to draw a decree in terms of the impugned order---Constitutional petition was disposed of accordingly.

Akbar Khan v. Aksar Khan and others C. R. No.138 of 2013 rel.

(b) Administration of justice---

----None should suffer due to any act, omission on the part of court. [p. 312] C

Ali Nawaz Kharal and Rana Rashid Javed for Petitioner.

Mian Ahmad Khan for Respondents Nos. 1 and 2.

Muhammad Zunair Seemab for Respondent No.4.

Ch. Zaheer Akhtar for Respondent No.7.

YLR 2022 ISLAMABAD 366 #

2022 Y L R 366

[Islamabad]

Before Tariq Mehmood Jahangiri, J

QUTAB ALI SHAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 1311-B of 2020, decided on 5th January, 2021.

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

----S. 497---Penal Code (XLV of 1860), Ss. 408 & 34---Qanun-e-Shahadat (10 of 1984), Art. 38---Criminal breach of trust by clerk or servant and common intention---Confession to police officer not to be proved--- Bail, grant of---Scope---Accused sought post-arrest bail in an FIR registered under Ss. 408 & 34, P.P.C.---Investigation in the case was complete and there was no evidence against the accused except his own statement before the police---Offence with which the accused was charged did not fall within the prohibitory clause of S. 497(2), Cr.P.C.---Accused had made out a case for further inquiry---Petition for grant of bail was accepted, in circumstances.

2020 SCMR 1258; 2020 SCMR 717; PLD 2017 SC 733; 2016 SCMR 1439 and 2011 SCMR 1708 ref.

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

----S. 497---Bail---Scope---Where a case falls within the prohibitory clause of S. 497, Cr.P.C., the concession of granting bail must be favourably considered and should only be denied in the exceptional circumstances.

----S. 497--- Bail--- Scope--- Ultimate conviction can repair the wrong caused by mistaken relief but no satisfactory reparation can be offered to the accused for his unjustified incarceration if he is acquitted ultimately.

Syed Faizan Ali for Petitioner.

Mohsin Ghaffar for the Complainant.

Usama Rauf, State Counsel.

YLR 2022 ISLAMABAD 478 #

2022 Y L R 478

[Islamabad]

Before Tariq Mehmood Jahangiri, J

MUHAMMAD MAROOF---Petitioner

Versus

The STATE and 2 others---Respondents

Writ Petition No. 2280 of 2021, decided on 20th October, 2021.

Criminal Procedure Code (V of 1898)---

---- S. 540--- Penal Code (XLV of 1860), Ss. 379, 427, 452, 506 (ii), 148 & 149---Theft, mischief causing damage, house trespass with preparation to cause hurt, criminal intimidation and rioting armed with deadly weapons---Additional evidence, recording of---Principle---Petitioner/complainant intended to producing additional evidence on the plea that proposed witnesses were eye-witnesses nominated in FIR but police did not record their statements---Trial Court and Lower Appellate Court dismissed application and revision petition filed by complainant---Validity---Trial Court could not summarily dismiss application for additional evidence in terms of S.540, Cr.P.C. by merely holding that either proposed witnesses were not mentioned in challan or that it was belated application or that it was filed to fill up lacunas in prosecution case, unless totality of material placed before it was considered to find out whether examination of the witnesses was essential for a just decision of the case--- Names of persons mentioned in application under S.540, Cr.P.C. were already mentioned in FIR as eye-witnesses, if their statements were recorded by Trial Court, no prejudice would be caused but if their statements were not allowed to be recorded, petitioner / complainant could suffer from such act and could not get proper justice from Court of law/Trial Court---High Court set aside orders passed by two Courts below and remanded the matter to Trial Court for affording one opportunity to petitioner/complainant produce witnesses mentioned in application---Constitutional petition was allowed, in circumstances.

2019 MLD 2048; 2021 PCr.LJ 417; 2018 YLR 2490; 2020 MLD 942; Jamatraj Kewalfi Govani v. State of Maharashtra AIR 1968 SC 178; Iddar and others v. Aabida and another AIR 2007 SC 3029; Ansar Mehmood v. Abdul Khaliq 2011 SCMR 713 and Shahbaz Masih v. The State 2007 SCMR 1631 ref.

Ch. Naeem Ali Gujjar for Petitioner.

Ali Hussain Bhatti for Respondents Nos.4 and 5.

Syed Shahbaz Shah, State Counsel.

YLR 2022 ISLAMABAD 568 #

2022 Y L R 568

[Islamabad]

Before Mohsin Akhtar Kayani, J

WAQAS AHMED---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 630-B of 2021, decided on 14th July, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 201---Qatl-i-amd and causing disappearance of evidence---Bail, grant of--- Circumstantial evidence--- Non-attribution of motive---Effect---Accused was charged for offences detailed in Ss.302 & 201, P.P.C.---Accused was not initially nominated in the FIR rather he was nominated through supplementary statement, whereafter he was taken in custody and mobile phone belonging to the deceased was recovered from his possession---Entire case was based upon circumstantial evidence which was admittedly a weak type of evidence, even no last seen witness was referred in the case---No motive was suggested in the case, even not mentioned in the FIR---Accused was a previous non-convict and his continued incarceration in jail would not serve any beneficial purpose---Post-arrest bail application of accused was allowed, in circumstances.

Zumarad Khan v. The State and another 2017 YLR Note 100; Asjad Mehmood v. The State and another 2011 PCr.LJ 1737; Ghulam Murtaza alias Bubal v. The State and another 2017 YLR 364 and Muhammad Jahangir Afzal v. The State through P.G. Punjab and another 2020 SCMR 935 ref.

Malik Fakhar Ali for Petitioner.

Zohaib Hassan Gondal, State Counsel.

Ms. Iqra Zulfiqar for Respondent No.2.

YLR 2022 ISLAMABAD 704 #

2022 Y L R 704

[Islamabad]

Before Tariq Mehmood Jahangiri, J

MUHAMMAD ASHRAF CHHEENA through L.Rs. and others---Petitioners

Versus

Mst. REHANA BIBI and 19 others---Respondents

Civil Revision No. 140 of 2014, decided on 12th October, 2021.

Civil Procedure Code (V of 1908)---

----O. XIV, R. 5---General Clauses Act (X of 1897), S. 24A---Power to amend issues---Scope---Trial Court amended an issue already framed by it on plaintiffs'/petitioners' application--- No fresh evidence was produced by petitioners on the amended issue---Suit was concurrently dismissed---Contention that both the Courts below had not given any finding on amended issue---Validity---Held, as the issues had been decided by discussing all the oral and documentary evidence, so if the issue was not reproduced according to its wordings in the impugned judgment, no prejudice was caused to the petitioners/plaintiffs---No irregularity or illegality has been committed by the Courts below while passing the impugned judgments/ decrees---Revision petition was dismissed accordingly.

The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others PLD 1971 SC 82; Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018; Mst. Saeeda Akhtar Sadiq through Special Attorney v. Tauqir Akhtar 2006 CLC 1430 and Mst. Sughra Bibi alias Mehran Bibi v. Asghar Khan and another 1988 SCMR 4 rel.

Zulfiqar Ali Abbasi for Petitioners.

YLR 2022 ISLAMABAD 769 #

2022 Y L R 769

[Islamabad]

Before Tariq Mehmood Jahangiri, J

Syed IMRAN GILLANI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 813-B of 2021, decided on 7th September, 2021.

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

----S. 497---Penal Code (XLV of 1860), Ss. 324, 427, 109, 148 & 149---Attempt to commit qatl-i-amd, mischief and thereby causing damage to the amount of Rs. 50 or upward, abetment, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---Prosecution case was that the accused party had attacked on complainant party and made firing, causing injuries to the members of complainant party---As per prosecution story, the petitioner made firing with pistol 30-bore on two persons---Co-accused also made firing with the Kalashnikov which hit both the arms of the injured, however, it was not mentioned that firing made by the petitioner with pistol 30-bore hit on which part of the body of injured---Medico Legal Report of injured reflected one entry and exit wound on the left arm and one entry wound on the right arm---No other injury was mentioned on the body of injured other than said two injuries---Injuries caused on both arms of the injured were caused by the burst fire with Kalashnikov by accused nominated in the cross version---Clear conflict existed between ocular account and medical evidence---Investigation in the case had been completed and the accused-petitioner was no more required for the purpose of investigation---Accused-petitioner was previously non-convict and was behind the bars for the last more than eleven months---Trial of the accused-petitioner had not seen any fruitful progress as yet, therefore, his further incarceration in jail would not serve any purpose---Tentative assessment of record showed that present accused-petitioner had made out a case of further inquiry---Bail petition was allowed, in circumstances.

Muhammad Hanif v. Manzoor and 2 others 1982 SCMR 153; Awal Khan and 7 others v. The State through AG-KPK and another 2017 SCMR 538; Khan Mir v. Amal Sher 1989 SCMR 1987; Syed Khalid Hussain Shah v. The State 2014 SCMR 12; Sohaib Mehmood Butt v. Iftikhar-ul-Haq 1996 SCMR 1845 and Mehmood Akhtar and another v. Haji Nazir Ahmad and 4 others 1995 SCMR 310 rel.

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

----S.497---Bail---Tentative assessment---While deciding bail application, before recording of evidence in the Trial Court, only tentative assessment is to be made by the court and it is not permissible to go into details of evidence that may prejudice the case of either party in one way or the other.

PLD 1994 SC 65; PLD 1994 SC 88, 2021 SCMR 111 and 2020 SCMR 937 rel.

----S. 497---Bail---Scope---Bail is not to be withheld as a punishment---No legal bar or compulsion to keep the people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds existed to disclose their complicity---Ultimate conviction and incarceration of a guilty person could repair the wrong caused by a mistaken relief of bail after arrest granted to him---No satisfactory reparation could be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run.

Manzoor and 4 others v. The State PLD 1972 SC 81 and Zaigham Ashraf v. The State and others 2016 SCMR 18 rel.

Raja Rizwan Abbasi and Izrar Ali for Petitioner/accused.

Sardar Shabbir Hussain for Respondent No. 2.

Syed Shahbaz Shah, State Counsel.

YLR 2022 ISLAMABAD 831 #

2022 Y L R 831

[Islamabad]

Before Tariq Mehmood Jahangiri, J

DILSHAD KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 156-B of 2021, decided on 8th March, 2021.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd and common intention---Pre-arrest bail, refusal of---Plea of alibi---Scope---Accused was nominated in the FIR with a specific role of committing qatl-i-amd of complainant's daughter---Complainant was also an eye-witness of the occurrence---Deceased and accused were married in the year 2008, out of the wedlock a son was born in the year 2009 and thereafter in the year 2013 the accused had pronounced divorce---Minor son was living with his father but when he grew up, he wanted to live with his mother---Accused was not happy, therefore, he filed an application under S. 491, Cr.P.C. wherein he had alleged that his son was abducted by the deceased---Deceased in the year 2020 had submitted an application to the S.H.O. (Station House Officer) wherein it was mentioned that some unknown persons while riding a bike had come close to her, had issued threats, had also shown some weapons and had stated that leave her son---Deceased had further stated in the application that it was second attack upon her---Plea of alibi, as raised by the accused, could only be considered by the Trial Court after recording of evidence---Accused had failed to make out a case for grant of pre-arrest bail---Petition was dismissed, in circumstances.

Waqar-ul-Haq v. State 1985 SCMR 974 and Bahadur v. Muhammad Latif 1987 SCMR 788 ref.

Rana Abdul Khaliq v. The State and others 2019 SCMR 1129 and Kamran Attaullah and another v. The State in Criminal Petition No. 149-K of 2020 rel.

Sajid Haider Malik for Petitioner/ accused.

Malik Muhammad Zulfiqar for the Complainant.

Mashhood Azam Awan, State Counsel.

Petitioner in person.

YLR 2022 ISLAMABAD 949 #

2022 Y L R 949

[Islamabad]

Before Aamir Farooq and Tariq Mehmood Jahangiri, JJ

SALAHUDDIN---Petitioner

Versus

The STATE through S.H.O.---Respondent

Criminal Miscellaneous No. 369-B of 2021, decided on 28th April, 2021.

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

----S. 497---Penal Code (XLV of 1860), Ss. 186, 353, 324 & 34---Qanun-e-Shahadat (10 of 1984), Art. 38---Obstructing public servant in discharge of public functions, assault or criminal force to deter public servant from discharge of his duty, attempt to commit qatl-i-amd and common intention---Confession to police officer not to be proved---Bail, grant of---Scope---Prosecution case was that main accused made firing on the police party, he was apprehended at the spot and pistol .30 bore was also recovered from his possession while the accused had escaped from the spot---Accused was involved in the case on the basis of admission made by co-accused---No direct evidence was available against the accused regarding the commission of offence---Complainant had not identified the accused during identification parade---Only allegation against the accused was of ineffective firing---Accused had not caused injury to any police official---Question of sharing common intention would be determined by the trial court after recording evidence---Investigation in the case had been completed and the accused was no more required for the purpose of investigation---Accused had made out a case of further inquiry---Petition for grant of bail was accepted, in circumstances.

Muhammad Aqeel alias Tapla v. The State 2014 MLD 316 and Mumtaz Hussain v. The State 1996 SCMR 1125 ref.

Abdul Qadir Motiwala v. State 2000 PCr.LJ 1734 rel.

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

----S.497---Bail---Tentative assessment---Scope---While deciding the bail application, before recording of evidence in the trial court, only tentative assessment is to be made by the Court and it is not permissible to go into details of evidence in one way or the other that might prejudice the case of either party.

PLD 1994 SC 65; PLD 1994 SC 88; 2021 SCMR 111 and 2020 SCMR 937 ref.

----S. 497---Bail---Scope---Bail is not to be withheld as punishment---No legal or moral compulsion exists to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds exist to disclose their complicity---Ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of bail granted to him, after arrest but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run.

Manzoor and 4 others v. The State PLD 1972 SC 81 ref.

Fahid Bin Sadaqat for Petitioner.

Ms. Ayesha Khan, State Counsel.

YLR 2022 ISLAMABAD 1024 #

2022 Y L R 1024

[Islamabad]

Before Tariq Mehmood Jahangri, J

HAMZA SADAQAT---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 283-B of 2021, decided on 29th April, 2021.

(a) Criminal Procedure 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, common object---Bail, refusal of---Absconsion of accused---Scope---Allegation against accused was that he along with another made direct firing upon the complainant as a result of which three persons died and another got injured---Accused was nominated in the FIR with specific role of causing fire arm injury with 44 bore rifle upon the deceased which hit the deceased on his head---Father of accused was also nominated in the FIR who was arrested but the accused had neither surrendered before the police nor had he applied for bail before arrest---Police, on the basis of Call Data Record (CDR), had opined that the accused was not present at the spot and had placed him as accused in Column No. 3 of the challan---Injured witness as well as two other eye-witnesses had nominated the accused with a specific role of causing fatal injury on head of the deceased---Sufficient material was available on record to connect the accused with the crime---Offences with which the accused was charged fell within the prohibitory clause of S.497, Cr.P.C.---Petition for grant of bail was dismissed, in circumstances.

Mudassar Altaf and another v. The State 2010 SCMR 1861; Mst. Qudrat Bibi v. Muhammad Iqbal and another 2003 SCMR 68; Sardar Munir Ahmed Dogar v. The State PLD 2004 SC 822 and Sher Ali alias Sheri v. The State 1998 SCMR 190 rel.

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

----S. 497---Bail---Plea of alibi---Scope---Plea of alibi can only be considered by the trial court after recording of evidence.

Waqar-ul-Haq v. State 1985 SCMR 974; Bahadur v. Muhammad Latif 1987 SCMR 788; Omar Daraz v. The State 2004 SCMR 1019 and Muhammad Afzal v. The State 2012 SCMR 707 ref.

----S.497---Bail---Tentative assessment---Scope---Court while deciding bail application before recording of evidence in the trial court has to tentatively assess the material and it is not permissible to go into details of evidence in one way or the other that may prejudice the case of either party.

PLD 1994 SC 65; PLD 1994 SC 88; 2021 SCMR 111 and 2020 SCMR 937 ref.

Basharat Ullah Khan for Petitioner/accused.

Raja Rizwan Abbasi for the Complainant.

YLR 2022 ISLAMABAD 1035 #

2022 Y L R 1035

[Islamabad]

Before Tariq Mehmood Jahangiri, J

TUFAIL AHMAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 703-B of 2021, decided on 6th September, 2021.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 341, 447, 511, 109, 506, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, wrongful restraint, criminal trespass, attempting to commit offence, abetment, criminal intimidation, rioting, armed with deadly weapon, common object---Bail, grant of---Contradiction in ocular and medical evidence---Completion of investigation---Scope---Complainant had nominated about 15 persons in the FIR and also mentioned that 80/90 unknown persons were also accompanying the accused nominated in the FIR---Complainant party had not gone to jail for joining the identification parade by making lame excuses---Role attributed to the accused was that he had made firing with Kalashnikov but Medico Legal Report revealed that the kind of weapon used was blunt and it was further mentioned that the possibility of fabrication could not be ruled out---Investigation in the case was complete and the accused was no more required for the purpose of investigation---Petition for grant of bail was accepted, in circumstances.

Khan Mir v. Amal Sherin 1989 SCMR 1987 and Syed Khalid Hussain Shah v. The State 2014 SCMR 12 ref.

Muhammad Hanif v. Manzoor and 2 others NLR 1981 SC 367 and Awal Khan and 7 others v. The State through AG-KPK and another 2017 SCMR 538 rel.

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

----S.497---Bail---Tentative assessment---Scope---Only tentative assessment is to be made by the Court while deciding bail application before recording of evidence and it is not permissible to go into details of evidence in one way or the other that may prejudice the case of either party.

PLD 1994 SC 65; PLD 1994 SC 88; 2021 SCMR 111 and 2020 SCMR 937 ref.

----S. 497---Bail---Scope---Bail is not to be withheld as a punishment---No legal or moral compulsion exists to keep the people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds exist to disclose their complicity---Ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of bail after arrest granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run.

Manzoor and 4 others v. The State PLD 1972 SC 81 ref.

Zaigham Ashraf v. The State and others 2016 SCMR 18 rel.

Raja Rizwan Abbasi and Izrar Ali for Petitioner/accused.

Zahid Asif Ch. for Respondent No.2.

YLR 2022 ISLAMABAD 1046 #

2022 Y L R 1046

[Islamabad]

Before Tariq Mehmood Jahangiri, J

MUHAMMAD YASIR MEHMOOD---Petitioner

Versus

Syed SIBT-E-HAIDER ZAIDI and another---Respondents

Criminal Miscellaneous No. 395-BC of 2021, decided on 29th June, 2021.

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

----Ss. 497(5) & 498---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Pre-arrest bail, cancellation of--- Scope--- Complainant sought cancellation of pre-arrest bail granted to accused in a case registered under S. 489-F, P.P.C.--- Accused was nominated in the FIR---Issuance of cheque by the company of accused and its dishonouring by the Bank was admitted---Accused had not shown any mala fide and ulterior motive against the complainant or police for the registration of FIR---Custody of accused was required for the purpose of recovery and investigation---Sufficient material was available on record to connect the accused with the commission of crime---Accused had failed to make out a case for grant of bail before arrest---Bail before arrest granted to the accused by the Sessions Judge was cancelled, in cancelled.

Rana Abdul Khaliq v. The State and others 2019 SCMR 1129; Malik Nazir Ahmed v. Syed Shamas-ul-Abbas and others PLD 2016 SC 171 and Kamran Attaullah and another v. The State (Criminal Petition No. 149-K of 2020) rel.

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

----S. 498---Pre-arrest bail---Scope---Bail before arrest cannot be claimed as a matter of legal right in each case and also it cannot be expected that it would be granted in each case unless legal requirements laid down are met---Grant of bail before arrest causes set back in investigation and can stand as stumbling block in the way of recovery of incriminating articles.

Sarwar Sultan v. The State and another PLD 1994 SC 133 rel.

----S. 498---Pre-arrest bail---Scope---Relief of pre-arrest bail is granted only in those matters where it would appear that the case was registered on enmity/mala fide or where no offence was shown to have been committed on the very face of record.

PLD 1983 SC 82; 1996 SCMR 74 and 1996 SCMR 71 ref.

Arif Khan Gigyani for Petitioner.

Azhar Yousaf and Syed Tahir Abbas for the Respondent No. 1/accused.

Syed Shahbaz Shah, State Counsel.

YLR 2022 ISLAMABAD 1189 #

2022 Y L R 1189

[Islamabad]

Before Aamer Farooq, J

Messrs DANCOM PAKISTAN (PVT.) LTD. Through Chief Executive Officer---Applicant

Versus

MINISTRY OF INFORMATION TECHNOLOGY AND TELECOM and 3 others---Respondents

C.M. No.360 of 2012 in Writ Petition No.1400 of 2011, decided on 8th December, 2021.

Civil Procedure Code (V of 1908)---

----S.35---Cost, imposition of---Scope---Applicant/Authority sought recovery of costs imposed by Court while disposing of main petition---Validity---Constitutional petition filed by petitioner was dismissed with costs, however, no specification was made as to the nature of costs---Cost imposed on petitioner was compensatory in nature and was to cover actual expenses incurred by applicant/Authority in defending the lis---No actual proof was submitted, a general figure in the sum of Rs.25000/- was appropriate as expenses---High Court declined to award counsel fee and miscellaneous expenses to applicant/Authority---Application was allowed accordingly.

Muhammad Zia v. Ch. Nazir Muhammad, Advocate and 4 others 2002 CLC 59; Kawas B. AGA and another v. City District Government, Karachi (CDGK) through Nazim-e-Ala and others PLD 2010 Kar. 182; Major (Retd.) Ahmed Nadeem Sadal and 3 others v. Federation of Pakistan through Secretary Sports, Islamabad and 3 others 2015 CLC 34; Urooj Tabani v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad and 2 others PLD 2021 Isl. 105; National Bank of Pakistan v. Messrs Asghar Enterprises and 2 others 2002 CLD 1097; Abdur Rahim Sathi v. Ghulam Sarwar and 11 others 2009 CLC 1039; Malik Sajjad v. Shafqat Zaman and 2 others 2019 CLC 284 and Pur Bux v. Province of Sindh through Secretary Education Government of Sindh and 10 others 2020 CLC 956 ref.

Hafiz Muhammad Naeem Ashraf for Applicant/Respondent authority.

Muhammad Shahzad Shaukat for Petitioner.

YLR 2022 ISLAMABAD 1281 #

2022 Y L R 1281

[Islamabad]

Before Tariq Mehmood Jahangiri, J

MUDASSAR MUKHTAR---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.546-B of 2021, decided on 28th June, 2021.

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

----S. 497---Bail---Evidence, assessment of---While deciding bail application, before recording of evidence in Trial Court, only tentative assessment is to be made by Court---Not permissible to go into details of evidence in one way or the other that may prejudice case of either party.

PLD 1994 SC 65; PLD 1994 SC 88; 2021 SCMR 111 and 2020 SCMR 937 rel.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Qatl-i-amd and rioting armed with deadly weapons---Bail, grant of---Further inquiry---Completion of Investigation---Effect---Accused was arrested for committing Qatl-i-amd and he sought his release on bail---Held, that bail is not to be withheld as a punishment---No legal or moral compulsion to keep people in jails merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds exist to disclose their complicity---Ultimate conviction and incarceration of a guilty person can repair wrong caused by mistaken relief of bail after arrest granted to him but no satisfactory reparation can be offered to innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run---Investigation was completed and accused was no more required for the purpose of investigation---Accused was previously non-convict and was behind bars for more than six months---Trial of accused did not see any fruitful progress and his further incarceration in jail would not serve any purpose---Case against accused was one of further inquiry---Bail was allowed in circumstances.

Manzoor and 4 others v. The State PLD 1972 SC 81 and Zaigham Ashraf v. The State and others 2016 SCMR 18 rel.

Raja Rizwan Abbasi and Izrar Ali for Petitioner.

Syed Shahbaz Shah, State Counsel.

Raja Faisal Younas and Malik Umar Qayyum for Respondent No. 2.

YLR 2022 ISLAMABAD 1290 #

2022 Y L R 1290

[Islamabad]

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

NADEEM QAYYUM and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 142 and Criminal Revision No. 71 of 2010, decided on 6th October, 2021.

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

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

----Ss. 302(b), 365, 201 & 34---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, causing disappearance of evidence, common intention---Appreciation of evidence---Sentence, reduction in---Last seen evidence---Scope---Accused was charged that he along with his co-accused committed murder of the son of the complainant---Complainant, in his complaint, had expressly mentioned that he had been informed by his brother/witness that at about 06:15 p.m. he had seen the deceased coming out of his house and going along with accused and that he had been informed by his tenant and another person that at about 07:00 p.m. when they were coming towards Koral in a vehicle, they had seen the deceased with the accused persons on the service road near a brick kiln---Brother of complainant, in his examination-in-chief, deposed that on 20.01.2009 at about 06:15 p.m., he had seen the deceased going with accused in front of the outer gate of the complainant's house---Said witness had also deposed that while he was taking his ailing daughter in a taxi to the hospital, he again saw the deceased standing with accused outside a Masjid---Tenant of complainant had also deposed that he along with another person, while coming towards Koral on the service road, had seen the deceased with the three accused near a brick kiln---Had witnesses of last seen evidence not given evidence as to in whose company the deceased was last seen, the testimony of the complainant as to the deceased having been last seen with the three accused would have been purely hearsay and not worthy of any consideration---For an offence to be proved, it was not necessary that it must be seen to have been committed---Offence could be proved by circumstantial evidence also---Circumstantial evidence consisted of evidence of facts that were so closely associated with the fact in issue if considered together formed a chain of circumstances from which the existence of the principal fact could be legally inferred or presumed---Place where tenant of complainant had lastly seen the deceased with the three accused was in close proximity to the place from where the dead body of the deceased was recovered---Circumstances established that the case did not present special features warranting interference in the convictions of the accused persons---Judicial confession made by the accused persons could not be relied upon, thus the sentence of accused was reduced from imprisonment for life to the term already undergone/served by them---Appeal was partly allowed.

Fayyaz Ahmad v. The State 2017 SCMR 2026 and Muhammad Abid v. The State PLD 2018 SC 813 rel.

----Ss. 302(b), 365, 201 & 34---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, causing disappearance of evidence, common intention---Appreciation of evidence---Sentence, reduction in---Extra-judicial confession---Scope---Accused was charged that he along with co-accused committed murder of the son of the complainant---Accused was arrested by the Investigating Officer on 21.01.2009---As per the 1nvestigating Officer's testimony, during interrogation, accused disclosed that he along with co-accused had murdered the deceased and threw his body in a well after placing it in a gunny bag---Deceased's body was recovered on 21.01.2009 on the pointation of accused---On 22.01.2009, the Investigating Officer arrested co-accused persons---Testimony of the Investigating Officer as to the confession and disclosures made by accused was corroborated by the witness, who had informed the police about address of accused---Said witness deposed inter alia that accused was arrested on 21.01.2009 in his presence and that the disclosure as to the occurrence and the place where the deceased's body was thrown had also been made by the accused in his presence---Said witness was one of the persons who went down the well to recover the deceased's body on the pointation of accused---Gunny bag containing the deceased's body was opened by the police in the presence of said witness---Said witness also signed the memo of recovery with respect to the gunny bag, the three cords and the left shoe recovered from the place of the occurrence---Disclosure made by accused on 21.01.2009 as to the deceased's murder by the three accused and the place where his body was thrown was indisputably an extra judicial confession---Not disputed that the confession made by accused was whilst he was in police custody---Article 37 of the Qanun-e-Shahadat, 1984, provided that a confession made by an accused person was irrelevant in a criminal proceeding, if the making of the confession appeared to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him---Circumstances established that the present case did not present special features warranting interference in the convictions of the accused persons, however, judicial confession made by the accused persons could not be relied upon, thus, the sentence of accused was reduced from imprisonment for life to the term already undergone/served by them---Appeal was partly allowed.

(d) Criminal trial---

----Extra-judicial confession--- Scope---Although an extra judicial confession is a weak type of evidence, conviction cannot be solely made on its basis but when such a confession is in conformity with the statements of other witnesses and the dead body is found on the basis of such confession then it cannot be simply ignored.

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

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

----Ss. 302(b), 365, 201 & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, causing disappearance of evidence, common intention---Appreciation of evidence---Sentence, reduction in---Confession before a Magistrate--- Scope--- Accused was charged that he along with his co-accused committed murder of the son of the complainant---Accused in his statement gave details as to how he along with co-accused persons had murdered the deceased---Accused confessed to tying the legs of deceased and striking him on his head with an iron chain---Said accused also implicated two co-accused by stating that co-accused had strangled the deceased with the rope whereas other co-accused had tied the hands of the deceased---Accused confessed that he along with co-accused persons had placed the body of the deceased in a gunny bag, placed bricks in the gunny bag so that it drowned and to have thrown it in the well---Before throwing the body in the well, the three accused had distributed the belonging of the deceased, including his two mobile telephone sets, between themselves---Said accused confessed that one of the mobile phones of the deceased and three mobile phones SIMs were kept by him---Co-accused in his statement confessed to have strangled the deceased with a rope around his neck---Said co-accused stated that in the face of pleas for mercy by the deceased, a collective decision was made by the three accused to kill him so that he did not reveal the fact as to the snatching of the mobile telephone sets from him---Said co-accused deposed that the hands of deceased were tied by other co-accused whereas his legs were tied by accused---After that, the deceased was taken to the brick kiln where accused struck him with an iron chain and his body along with bricks was placed in a gunny bag and thrown into the well---One of the mobile phones of deceased was kept by accused and the other one by other co-accused---Other co-accused in his statement before the Executive Magistrate deposed that the deceased had been called by accused to the brick kiln for the sale of his mobile phone---Said co-accused confessed to killing the deceased jointly with the other two accused---Said co-accused gave details as to how he tied the hands of deceased behind his back and how he held him while co-accused put a rope around his neck and accused tied his legs---Said co-accused stated that at the brick kiln accused struck the deceased on his head with an iron chain and thereafter the accused persons placed his body in a gunny bag and threw it in the well---Executive Magistrate deposed that he had recorded the confessional statements of accused persons under S. 164, Cr.P.C after ascertaining that the accused persons were ready to make their statements voluntarily---No contradictions in the confessional statements of the three accused---Accused persons gave graphic details of how the accused in concert murdered the deceased and concealed his body by putting it in a gunny bag and throwing it into the well---Said statements also elaborated the exact roles played by each of the accused in putting the deceased to death---Post-mortem was also consistent with the explicit description given by the accused persons in their confessional statements as to the manner in which the deceased was murdered---Circumstances established that the present case did not present special features warranting interference in the convictions of the accused persons, however, judicial confession made by the accused persons could not be relied upon, thus reduced the sentence of accused from imprisonment for life to the term already undergone/served by them---Appeal was partly allowed.

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

----S. 164--- Delay of one week in recording confessional statement---Scope---Confessional statements of the accused persons were recorded after they had remained in police custody for about a week---Delay in the recording of the confessional statements per se did not vitiate the confessions.

Khan Muhammad v. The State 1999 SCMR 1818; Ahmad Hassan v. The State 2001 SCMR 505 and Shahid Azeem v. The State 2018 PCr.LJ 1653 rel.

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

----S. 164---Judicial confession, retraction of---Scope---For a judicial confession, whether later retracted or not, to form the basis of a conviction, it must first be tested whether the confession is voluntary and truthful inculpating the accused in the commission of the crime---For a confession to be proved to have been made voluntarily, the Court had to satisfy itself that all the prerequisites under S.164, Cr.P.C. had been fulfilled---If such conditions were fulfilled, the mere fact that a confession was retracted by the accused would not ipso facto denude it of its evidentiary value.

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

Azeem Khan v. Mujahid Khan 2016 SCMR 274; Nazir Shehzad v. The State 2009 SCMR 1440 and Ghulam Rasool v. The State 1977 PCr.LJ 985 rel.

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

----S. 34---Common intention---Scope---Section 34, P.P.C. did not create a distinct offence but lays down the principle of joint criminal liability---Necessary conditions for the application of Section 34, P.P.C., were common intention to commit an offence and participation by all the accused in doing an act or acts in furtherance of the common intention---If the said two ingredients were established, all the accused would be liable for the offence---If two or more persons had common intention to commit murder and they had participated in the acts done by them in furtherance of that common intention, all of them would be guilty of murder---Moreover, common intention presupposes prior concert---Common intention requires a pre-arranged plan because before a person can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of all of them---Plan needed not be elaborated nor was a long interval of time is required, it could arise and be formed suddenly, however, there must have been a prior meeting of minds.

Muhammad Abid v. The State 2011 SCMR 1148; Muhammad Yaqoob v. The State PLD 2001 SC 378; Muhammad Arshad v. The State PLD 1996 SC 122; Pandurang v. The State of Hyderabad PLD 1956 SC (India) 176 and Mahbub Shah v. King Emperor AIR 1945 PC 118 rel.

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

----Ss. 302(b), 365, 201 & 34---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine person, causing disappearance of evidence, common intention---Appreciation of evidence---Sentence, quantum of---Accused was charged that he along with his co-accused committed murder of the son of the complainant---Judicial confessions made by the accused persons could not be relied upon and since the accused persons had remained incarcerated since January, 2009 i.e., more than twelve and a half years---Thus, sentence of accused persons was reduced from imprisonment for life to the term already undergone/served by them---Appeal was partly allowed.

Muhammad Ilyas Siddiqui and Imran Feroz for Appellants.

Rao Abdur Raheem and Saad Hassan for the respondent/Complainant (in Crl. Appeal No.142/2010 and petitioner in Criminal Revision No.71 of 2010).

Muhammad Atif Khokhar for the State.

YLR 2022 ISLAMABAD 1368 #

2022 Y L R 1368

[Islamabad]

Before Tariq Mehmood Jahangiri, J

MUHAMMAD NOMAN KHAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.1232-B of 2021, decided on 6th December, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.406---Criminal breach of trust---Bail, grant of---Involvement in other cases---Effect---Accused was arrested for his failure to return car of complainant which he took for two days---Complainant contended that accused was involved in other criminal cases also---Validity---High Court observed that mere involvement in other cases could not disentitle accused from relief of bail, if accused otherwise had succeeded in bringing his case within the meaning of further inquiry---Liberty of a person is a precious right that has been guaranteed by the Constitution---Where there is slight tilt towards grant of bail, same needs to be preferred over letting one to confine in jail for an indefinite period in the name of trial when conclusion thereof can completely impose due punishment for such released person---Investigation was completed and accused was previously non-convict, who was no more required by police for the purpose of further investigation---Accused had been behind the bars for five months without any progress in trial---Fair and speedy trial was one of the fundamental rights of accused and no moral or legal compulsion existed to keep him behind the bars for an indefinite period which would amount to punishment without trial---Case of accused was one of further inquiry---Bail was allowed, in circumstances.

Moundar and others v. The State PLD 1990 SC 934; Babar Hussain v. State 2020 SCMR 871; Muhammad Rafique v. State 1997 SCMR 412; Muhammad Abid Farooq v. The State and another 2015 PCr.LJ 224; Jamal-ud-Din alias Zubair Khan v. The State 2012 SCMR 573; Abdul Qadir Motiwala v. State 2000 PCr.LJ 1734; Tariq Bashir and others v. The State PLD 1995 SC 34; Muhammad Tanveer v. The State and another PLD 2017 SC 733; 2011 SCMR 1708; 2016 SCMR 1439; 2020 SCMR 1258 and 2020 SCMR 717 rel.

Ch. Azmat Ali for Petitioner.

Muhammad Sohail Khurshid, State Counsel.

Syed Azhar Hussain Shah, State Counsel.

Nowsherwan, S.P. Saddar Zone, Islamabad and Hussain Tahir, A.S.P. Ramna Circle, Islamabad.

Sajid Cheema, D.S.P. (Legal)/ Inspector. Akhtar Zaman, S.I./S.H.O., Police Station Ramna, Islamabad.

Mian Shahbaz Ahmad, Inspector/ I.O. Police Station Ramna, Islamabad.

YLR 2022 ISLAMABAD 1488 #

2022 Y L R 1488

[Islamabad]

Before Tariq Mehmood Jahangiri, J

BABAR HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.37-B of 2021, decided on 1st March, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 148 & 149---Qatl-e-Amd, attempt to Qatl-e-Amd and rioting armed with deadly weapons---Bail, grant of---Cross cases--- Aggressor party---Determination---Principle of consistency---Accused was arrested in a case where there were cross cases against both the parties---Validity---All accused persons from both parties were released on bail after arrest by Trial Court---Dandas were recovered from shop of accused lying with other articles---Question of aggression was still to be determined and bail was not to be withheld as punishment--- No legal or moral compulsion was available to keep people in jail merely on allegation that they had committed offences punishable with death or transportation unless reasonable grounds appeared to exist to disclose their complicity---Ultimate conviction and incarceration of a guilty person could repair wrong caused by a mistaken relief of interim bail granted to him but no satisfactory reparation could be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in long run---Case of accused was one of further inquiry---Bail was allowed in circumstances.

Muhammad Aslam and another v. The State through A.G. Punjab and another 1997 SCMR 251; Muhammad Anees v. The State and others 2011 YLR 2805; Ghulam Abbas alias Gaman and others v. The State and others 2017 SCMR 1730; Noor Muhammad v. The State and another 2020 SCMR 1049; Amir Ali and others v. The State 1984 SCMR 521; Zulfiqar Ali V. The State 1996 MLD 1457; Muhammad Abbasi v. The State and another 2011 SCMR 1606; Yasir v. The State and another 2017 MLD 444; Shehryar Khan v. The State and another 2020 SCMR 1436; Arif Din v. Amil Khan and another 2005 SCMR 1402; Muhammad Usman and another v. The State 1975 SCMR 391; Asif Ayub v. The State 2010 SCMR 1735; Jehanzeb alias Bhobi v. The State 2002 SCMR 1380; Shahid Farooq v. The State and others 2011 SCMR 1619; Mudassar Altaf and another v. The State 2010 SCMR 1861; Khalida Bibi v. Nadeem Baig PLD 2009 SC 440; Mohsin Ali v. The State and others 2016 SCMR 1529; Muhammad Aslam and others v. The State and others 2016 SCMR 2094 and Nasir Muhammad Wassan and another v. The State 1992 SCMR 501 ref.

Sohaib Mehmood Butt v. Iftikhar-ul-Haq 1996 SCMR 1845 and Mehmood Akhtar and another v. Haji Nazir Ahmed and 4 others 1995 SCMR 310 rel.

Izrar Ali for Petitioner.

Zahid Asif Ch. for the Complainant/ Respondent No.2.

YLR 2022 ISLAMABAD 1556 #

2022 Y L R 1556

[Islamabad]

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

The STATE---Petitioner

Versus

QAMAR ZAMAN---Respondent

Criminal Appeal No. 18 and Murder Reference No.1 of 2015, decided on 13th March, 2019.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of his wife and another person by firing---Couple was not blessed with children despite being married for a considerably long time---Except for the statement of the complainant, there was nothing on record to suggest that the relationship of the couple was strained or that the differences were of such a nature that could have led to taking the life of the wife---Rather the complainant had testified that both had visited his house in the evening of the fateful day and that they had left together an hour before the occurrence---Deposition of the complainant did not give the impression that the relationship of the couple was strained---Nothing was on record to explain the presence of deceased at the house of the accused or his relationship with the latter or other deceased---Complaint and FIR were silent regarding the motive, nor could the prosecution bring on record trustworthy evidence to establish any motive attributed to the accused for taking two lives---Circumstances showed that the prosecution was not able to bring on record unimpeachable evidence, therefore, certainty of guilt could not be established beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Rahat Ali v. The State 2010 SCMR 584; Abdul Khaliq v. The State 1996 SCMR 1553; Imran Ashraf and 7 others v. The Sate 2001 SCMR 424; Khurram Malik and others v. The State and others PLD 2006 SC 354; Arshad Mehmood v. The State 2005 SCMR 1524; Khalid Rasheed v. The State 2012 MLD 1274; Safdar Abbas and 4 others v. The State 2008 MLD 1007; Saeed Ahmed v. The State 2015 SCMR 710 and Muhammad Akram v. The State 2003 SCMR 855 ref.

Muhammad Khan and another v. The State 1999 SCMR 1220 and Abdul Wahab alias Rehra v. The State 1999 SCMR 1668 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Contradictions in statements of witnesses---Scope---Accused was charged for committing murder of his wife and another person by firing---Timings mentioned in the testimony of uncle of lady deceased were contradicted by depositions of other witnesses---Complainant in his examination-in-chief had deposed that the couple had visited his house on the day of occurrence and had left at 10:00 p.m. while he received information regarding the occurrence at about 11:00 p.m.---According to complainant the Investigating Officer had left the crime scene for about 30 minutes and when he returned, the accused was in his custody and that the latter was handcuffed---Complainant further deposed that the accused had led to the recovery of the firearm weapon i.e. 30 bore pistol from underneath the pillow---Furthermore, in his cross-examination he took an altogether different stance---Complainant deposed that when the Investigating Officer reached the crime scene, he carried out a search of all the rooms of the house and that it was during the said search that the firearm weapon i.e. 30 bore pistol was recovered---Statements of the said private witnesses had not been able to persuade that they were confidence inspiring, credible or trustworthy for handing down a conviction---Material contradictions raised serious doubts regarding the veracity and trustworthiness of the depositions---Circumstances showed that the prosecution was not able to bring on record unimpeachable evidence, therefore, certainty of guilt could not be established beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay in recording statement of complainant---Scope---Accused was charged for committing murder of his wife and another person by firing---Statement of complainant was recorded after seventeen days of the occurrence---No plausible explanation had been given by complainant or the Investigating Officer for the delay in recording his statement under S.161, Cr.P.C.---Circumstances showed that the prosecution was not able to bring on record unimpeachable evidence, therefore, certainty of guilt could not be established beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

(d) Criminal trial---

----Witness--- Interested witness---Reliance---Scope---Mere relationship of the deceased with a witness was not sufficient to discard his testimony unless the latter fell within the expression of an interested witness---Interested witness was a person who had a motive to falsely implicate another person or in other words had an animus for false charge against an accused.

Anar Gul v. The State through Advocate-General, N.-W.F.P. and another 1999 SCMR 2303 rel.

Basharat Ullah Khan and Ch. Khurram Tassadaq for Appellants.

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

Malik Awais Haider for the State.

YLR 2022 ISLAMABAD 1696 #

2022 Y L R 1696

[Islamabad]

Before Tariq Mehmood Jahangiri, J

QAISER JABBAR---Petitioner

Versus

Syed MATI ULLAH SHAH and another---Respondents

Criminal Revision No. 29 of 2021, decided on 23rd August, 2021.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4 & 5---Criminal Procedure Code (V of 1898), S. 439---Illegal dispossession---Criminal proceedings---Maintainability---Land grabbers---Proof---Civil litigation, pendency of---Petitioner/ complainant was aggrieved of dismissal of his criminal complaint against respondents/accused persons---Validity---Complaint under Illegal Dispossession Act, 2005, was maintainable against any person who had forcibly dispossessed the occupier or owner---Such remedy was not meant to settle civil dispute or a substitute for civil dispute---Civil litigation was pending between the parties---Provision of section 3 of Illegal Dispossession Act, 2005, was applicable only to land grabbers--- Petitioner/ complainant failed to produce any legal and cogent evidence in support of his contention, he mentioned different dates of occurrence and had also not filed document before High Court in accordance with law and civil litigation was pending between parties---High Court declined to interfere in order passed by Trial Court---Revision was dismissed, in circumstances.

Habibullah and others v. Abdul Manan and others 2012 SCMR 1533; Zahoor Ahmed and 5 others v. The State and 3 others PLD 2007 Lah. 231; Mumtaz Hussain v. Dr. Nasir Khan and others 2010 SCMR 1254 and Bashir Ahmed v. Additional Sessions Judge, Faisalabad and 4 others PLD 2010 SC 661 rel.

Ms. Raheema Khan, Muhammad Sanaullah and Saad Javid Satti for Petitioner.

Muhammad Arshid Baig for Applicant/Sheikh Adnan Ahmed (in C.M. No. 291 of 2021).

YLR 2022 ISLAMABAD 1972 #

2022 Y L R 2064

[Islamabad]

Before Tariq Mehmood Jahangiri, J

MANZOOR KHAN and another---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 313-B of 2021, decided on 20th April, 2021.

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

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3 & 4---Prohibition of manufacture, etc, of intoxicants---Owning or possessing intoxicants---Bail, grant of---Accused persons were apprehended while transporting 552 bottles of liquor---Contention of accused persons was that the recovered articles were diplomatic consignment which was imported for the High Commission of a foreign country by adopting all the legal and codal formalities; that they were only the driver and loader of a Goods Forwarding Agency and that they had not committed any offence---Accused persons had annexed all the relevant documents/ permissions, etc. obtained from the concerned authorities in support of their contentions---Receipt of Goods Forwarding Agency for carrying the said consignment was also enclosed---Offence under Arts. 3 & 4 of the Prohibition (Enforcement of Hadd) Order, 1979 did not fall under the prohibitory clause of S. 497, Cr.P.C.---Investigation in the case was complete and the accused persons were no more required for the purpose of investigation---Report under S. 173, Cr.P.C. had not been submitted in the court as such there was no chance of early conclusion of trial---Report of Chemical Examiner was yet to be received---Bail was allowed, in circum-stances.

2011 SCMR 1708; 2016 SCMR 1439; 2020 SCMR 1258 and 2020 SCMR 717 ref.

Tariq Bashir and others v. The State PLD 1995 SC 34 and Muhammad Tanveer v. The State and another PLD 2017 SC 733 rel.

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

----S. 497---Bail---Scope---Only tentative assessment is to be made by the court while deciding the bail application before recording evidence in the Trial Court and it is not permissible to go into details of evidence in one way or the other that might prejudice the case of either party.

PLD 1994 SC 65; PLD 1994 SC 88; 2021 SCMR 111 and 2020 SCMR 937 ref.

Raja Rizwan Abbasi for Petitioners.

Zamurd Khan, State Counsel.

YLR 2022 ISLAMABAD 2064 #

2022 Y L R 2176

[Islamabad]

Before Sardar Ejaz Ishaq Khan, J

MUHAMMAD ZAHID---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 19-B of 2022, decided on 19th January, 2022.

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

----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, refusal of---Scope---Accused had issued a cheque in furtherance of a compromise deed filed before a court to secure bail from that Court, either knowing that the Bank account on which cheque was drawn was already closed or closing the account after bail but the end result did not change in either case, rather, if latter, that would make it all the more wicked for taking steps to defeat a solemn undertaking before a court---Petition for grant of bail was dismissed.

2020 SCMR 871; 2010 YLR 624; 2017 SCMR 728; 2016 PCr.LJ 769; 2015 MLD 1266; 2010 PCr.LJ 504; 2004 SCMR 283; 2009 SCMR 174 and 2007 PCr.LJ 388 ref.

Tariq Bashir's case PLD 1995 SC 34; Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488 and Muhammad Imran v. The State PLD 2021 SC 903 rel.

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

----S. 497---Bail---Scope---Grant of bail in offences not falling within the ambit of prohibitory clause is the rule and refusal an exception, with the exception becoming operative where, as a result of bail being granted, there was (i) the likelihood of the accused absconding, (ii) an apprehension of the accused tampering with the prosecution evidence, or (iii) the danger of the offence being repeated---Exception can also be operative if the accused is a previous convict.

Tariq Bashir's case PLD 1995 SC 34 rel.

----S. 497---Bail---Scope---Grant of bail in non-bailable offence is not a right but a concession.

Tariq Bashir's case PLD 1995 SC 34 rel.

Naveed Akhtar Rajpoot for Petitioner.

Asad Ullah Taimoor, State Counsel.

Adnan Altaf Bhatti for the Complainant.

YLR 2022 ISLAMABAD 2176 #

2022 Y L R 2402

[Islamabad]

Before Miangul Hassan Aurangzeb, J

MUHAMMAD KHALID---Petitioner

Versus

Mst. SHEHNAZ BEGUM and others---Respondents

Civil Revision No. 243 of 2017, decided on 12th March, 2019.

Specific Relief Act (I of 1877)---

----Ss.12 & 54---Qanun-e-Shahadat (10 of 1984), Art.79---Civil Procedure Code (V of 1908), S. 115---Specific performance of agreement to sell---Execution of agreement---Proof---Concurrent findings of two Courts below---Respondent/ plaintiff claimed to have entered into agreement with petitioner/defendant to sell his suit plot---Suit was decreed in favour of respondent/plaintiff and appeal was dismissed by Lower Appellate Court---Validity---Petitioner/defendant applied to the authorities to change his address, to that of respondent/plaintiff after he had entered into agreement in question---Intention behind change of address was that all future correspondence regarding suit plot should be made by authorities at the address of respondent/plaintiff---Subsequent to the agreement, installments for suit plot were also paid by respondent/plaintiff and receipts in that regard were duly exhibited---Petitioner/ defendant had filed application before authorities for transfer of suit plot in favour of nominee of respondent/ plaintiff---Execution of the agreement between parties was duly proved through production of its marginal witness, Notary Public and stamp vendor---High Court declined to interfere in concurrent findings of facts by two Courts below as there was no anomaly or contradiction in evidence produced by respondent/plaintiff nor there was any jurisdictional infirmity or misreading or non-reading of evidence by Courts below---Revision was dismissed in circumstances.

Niazullah Khan Niazi for Petitioner.

Muhammad Asif Khan for Respondent No.9.

Abdullah Qazi for Respondents Nos.10 and 11.

YLR 2022 ISLAMABAD 2402 #

2022 Y L R 2424

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Messrs ALAMDAR TAHAWAR AND NASIR (PRIVATE) LIMITED through Manager---Petitioner

Versus

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

Writ Petitions Nos. 2435 and 3164 of 2021, decided on 18 August, 2022.

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

----Art.115---Estoppel by tenant---Scope---Howsoever, defective title of landlord may be, tenant is not permitted to dispute the same unless he has surrendered possession to his landlord.

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

----S. 17 (6), (8) & (9)---Qanun-e-Shahadat (10 of 1984), Art. 115---Constitution of Pakistan, Art. 199---Constitutional petition--- Future rent, non-deposit of---Relationship of landlord and tenant---Defect in title of landlord---Effect--- Petitioner / landlord was aggrieved of non-deposit of rent by respondent/tenant on his denial of relationship of landlord and tenant---Validity---Respondent could not deny that his entry into rented premises was only on the basis of rent agreement---Once a tenant was always a tenant---Such doctrine was based on the principle that once one had entered into premises as a tenant, he could not be heard to deny lessor's title---Allotment of plot in question was cancelled but respondent did not lose his status as a tenant---Such cancellation did not ipso facto bring to an end the tenancy created by rent agreement nor it created a tenancy with Capital Development Authority---No rent agreement between respondent and Capital Development Authority---No agreement as respondent was using rented premises for a commercial purpose which was not the purpose for which plot in question, in which rented premises were situated, was allotted by Capital Development Authority---Respondent was estopped by Art. 115 of Qanun-e-Shahadat, 1984 from disputing title of petitioner so long as he was in possession of rented premises---Denial of respondent of a relationship of landlord and tenant with petitioner based on his objection to title of petitioner could not have been looked into by Rent Controller---Rent Controller committed jurisdictional irregularity by holding that order for deposit of tentative rent could not be passed where there was denial of relationship of landlord and tenant---High Court directed Rent Controller to give decision on consequences of respondent's failure to show compliance with direction given to him for deposit of future rent---Constitutional petition was disposed of accordingly.

Mushtaq Ahmad Kiani v. Bilal Umair 2009 SCMR 1008; Bilal Abid v. District Judge (West) Islamabad 2015 YLR 2405; Shamshad Ali v. Ghulam Muhammad Chaudhry 2009 CLC 52; Hassan Ali Khan v. Additional District Judge Islamabad 2003 CLC 1819; Muhammad Akbar Chohan v. Rent Controller, Islamabad 2017 MLD 53; Amin v. Ghulam Muhammad PLD 2006 SC 549; Zarina Khan v. Farzana Shoaib 2017 SCMR 330; Sadiq Ali v. M.D. Arif PLD 1975 Lah. 284; Muhammad Aslam v. Abdul Majeed 1991 CLC 481; Anjuman Jamiat-ul-Ikhwan v. Karachi Building Control Authority 2006 YLR 1395; Muneer Khan v. Uzma Oufak 2011 CLC 248; Aqsa Jawed v. Muhammad Hassan 2021 CLC 1780; Shri Ram Pasricha v. Jagannath AIR 1976 SC 2335; D. Satyanarayana v. P. Jagadish AIR 1987 SC 2192; Vashu Deo v. Balkishan AIR 2002 SC 569 = 2002 (1) SCR 171; Sheela v. Firm Prahlad Rai Prem Prakash 2002 (3) SCC 375; Umar Ikram-ul-Haque v. Dr. Shahida Hasnain 2016 SCMR 2186 and Yasin Khan v. Additional District Judge 2019 YLR 2894 rel.

Khurram Mahmood Qureshi for Petitioner.

Nouman Munir Paracha, for Respondent No.2 (Waheed Ahmed).

Ashraf Ali Awan for C.D.A.

YLR 2022 ISLAMABAD 2424 #

2022 Y L R 2473

[Islamabad]

Before Arbab Muhammad Tahir, J

Professor MUHAMMAD ANWAR---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 819-BC of 2021, decided on 7th April, 2022.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 409 & 420---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust, cheating and misconduct---Grant and refusal of bail---Principles---Complainant was aggrieved of grant of bail to accused and sought its cancellation---Validity---Considerations for grant of bail and for cancellation of the same were altogether different---Once bail was granted by a Court of competent jurisdiction, then strong and exceptional grounds were required for cancellation---Bail order was neither perverse nor arbitrary---Offence under S.420, P.P.C. was bailable wherein bail was to be granted as a matter of right while offence under S. 5(2) of Prevention of Corruption Act, 1947, did not fall within the ambit of prohibitory clause of S.497, Cr.P.C., wherein grant of bail was a rule and refusal was an exception---High Court declined to interfere in bail order granted in favour of accused---High Court directed that if at any time accused would misuse privilege of bail it was open to complainant to approach Court concerned for cancellation of bail---Application was dismissed, in circumstances.

Shahzaib and others v. The State PLD 2021 SC 886; Order dated 02.09.2021 Criminal Miscellaneous No. 598-B of 2021; 2008 YLR 330; PLD 2008 Pesh. 45; 2011 SCMR 1438; PLD 2021 SC 892; 2015 SCMR 1394; 2017 SCMR 944; 2020 PCr.LJ 338; PLD 2019 HC (AJ&K) 9 and judgment dated 26.01.2022 passed by this Court is W.P. No. 2406 of 2021 ref.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Sharif Khan v. The State 2021 SCMR 87; Samiullah and another v. Laiq Zada and others 2020 SCMR 115;Muhammad Ramzan alias Jani v. The State and others 2020 SCMR 717 and Saeed Ahmed v. State 1996 SCMR 1132 rel.

Arif Chaudhry, Advocate Supreme Court for Petitioner.

Abdul Wahid Qureshi for Respondent No.3.

YLR 2022 ISLAMABAD 2473 #

The file is currently being updated. Plz try again later. If the link still does not work, report to pakistanlawsite@oratiertechnologies.com

Karachi High Court Sindh

YLR 2022 KARACHI HIGH COURT SINDH 63 #

2022 Y L R 63

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Fahim Ahmed Siddiqui, JJ

Dr. KHAIR MUHAMMAD SAHOWAL and 3 others---Petitioners

Versus

PROVINCE OF SINDH through Secretary Home Department and 2 others---Respondents

C.Ps. Nos. D-3058 and D-3366 of 2017, decided on 9th April, 2019.

Penal Code (XLV of 1860)---

---S. 322--- Sindh Health Care Commission Act, 2013 (VII of 2014), Ss. 4(6)(b) & 29---Qatl-bis-sabab---Investigation into allegations of mal-administration and malpractice of medical professionals---Immunity---Scope---Petitioners sought quashing of FIR lodged under S.322, P.P.C. against them--- Validity--- Section 322, P.P.C. attracted to the case if death was caused due to criminal negligence of the petitioners (Medical professionals)---Petitioners belonged to medical profession and settled test of medical negligence provided that "a medical professional was not guilty of negligence if he had acted in accordance with a practice accepted as proper by a responsible body of a medical men skilled in the particular art"---Sindh Health Care Commission was constituted to determine whether the petitioners had committed medical negligence or not---High Court referred the matter to Sindh Health Care Commission under S.4(6)(b) of Sindh Health Care Commission Act, 2013 for inquiry/investigation with direction to transmit the result of investigation to the Trial Court---Constitutional Petition was disposed of accordingly.

Bolam v. Firern Hospital Management Committee 1957(2) All England Law Reports 118 fol.

Syed Tarique Ahmed Shah for Petitioners.

Ali Ahmed Palh for Respondent No.2.

Allah Bachayo Soomro, Addl. Advocate General and Shawak Rathore, Deputy Prosecutor General for the State.

Date of hearing: 9th April, 2019.

JUDGEMENT

FAHIM AHMED SIDDIQUI, J.---The petitioners are belonging to medical profession and performing their jobs as doctors in Civil Hospital Tando Allahyar. They have challenged the lodgment of FIR being Crime No.95 of 2017 at Police Station A-Section Tando Allahyar under section 322, P.P.C. and have sought quashment of the same by preferring the instant petition.

The factual matrix of the case is that respondent No.2 being, complainant of aforementioned FIR, reported to police that on 19.08.2017, his brother Manthar Ali was suffering from some asthmatic disorder, as such, he was immediately taken to Civil Hospital Tando Allahyar. When he reached in the emergency ward of the hospital, he found that doctor was missing. On enquiry, it came to his knowledge that duty medical officer Dr. Rasheed Shaikh (petitioner No.2) was sitting in the office of Medical Superintendent, where he was contacted and requested to attend the patient. The petitioner No.2 informed the respondent No.2 that he could do nothing as oxygen is not available and directed him to take the patient to a private hospital belonging to petitioner No.l. The petitioner No.1 got ECG report of the brother of respondent No.2 and informed him that there is something wrong with artery of heart for which some injection was required but the same was not available. The petitioner No.1 advised respondent No.2 to take his ailing brother to Hyderabad and in the way to Hyderabad, he expired.
The respondent No.2 then approached to the Sessions Court and after getting an order, he succeeded in lodging the aforementioned FIR involving the petitioners as offenders of unlawful act of criminal negligence and causing death of his brother Manthar Ali.
We have heard the arguments advanced by either side and gone through the record available before us. It is contended by the learned counsel for the petitioner that in the case of medical negligence, the only remedy available to the respondent No.2 is to approach the Sindh Health Care Commission, which has jurisdiction in such cases under the law. He submits that as per provision under Section 29 of the Sindh Health Care Commission Act, 2013, the act of lodging of FIR is not permissible as under the said Section immunity has been provided to the person of medical profession. He further submits that proper course available to the aggrieved person in respect of medical negligence is to approach the Health Care Commission, which is the only body in the Province to deal with such matters. In response to a query, he frankly admits that a legal proceedings and even criminal case may be initiated against the medical officer provided that he has been held responsible/guilty by appropriate forum i.e. Sindh Health Care Commission.
On the other hand, the learned counsel for the respondent No.2 submits that respondent No.2 has no objection if the matter is referred to Sindh Health Care Commission with direction that if the negligence of the petitioners is established then the Health Care Commission may refer the case to the trial Court and trial be initiated accordingly. On such suggestion, learned counsel for the petitioner submits that some reasonable time be given to Health Care Commission for deciding the matter and whatever the result or an opinion of the Health Care Commission, the same may be transmitted to the trial Court and if the Health Care Commission declare that the petitioners are innocent then they may file appropriate application before the trial Court for their acquittal.
It is appropriate to point out that the FIR against the petitioners is lodged under section 322, P.P.C., which deals with Qatl-bis-sabab. The definition of the Qatl-bis-sabab is given under section 321, P.P.C., which is as under:-

"Whoever, without any intention to cause death of or cause harm to, any person, does any unlawful act which becomes a cause for the death of another person, is said to commit qatl-bis-sabab".

YLR 2022 KARACHI HIGH COURT SINDH 84 #

2022 Y L R 84

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

IFTIKHAR AHMED alias IMTIAZ and another---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos.7, 8 and 9 of 2009, decided on 13th September, 2019.

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

Zafar v. State 2018 SCMR 326 rel.

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

----Ss. 302, 365-A, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security etc., abetment, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of the father of complainant after abducting him for ransom---Record showed that there was no evidence that deceased was abducted by the accused---Nothing was on record to show that any ransom demand was actually made since there was no voice recording available despite the caller allegedly called many times for the payment of ransom---Phone recovered from the son of the deceased was not sealed and there was no evidence of its safe custody thereafter---Prosecution case was that the deceased was strangled before being dumped into the water tank at the house---Cause of death of the deceased however had not been established by the medical report which did not state the deceased was strangled and there appeared to be no final cause of death certificate on record---Inquest report of the deceased showed no marks on the neck of the deceased and as such the cause of death could not be established---Recovery of rope at the scene of the crime was of no relevance---Deceased could have drowned in the water tank at the house by falling in it himself by accident which would not make that a case of murder---No evidence of abduction or of a ransom having been made or even a motive was available---Prosecution had failed to prove its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Naeem Akhtar and others v. The State 1993 PCr.LJ 769; Muhammad Khan and another v. The State 1999 SCMR 1220; Muhammad Sajjad v. The State 2009 SCMR 1248; Mst. Askar Jan and others v. Muhammad Daud and others 2010 SCMR 1604; Shahzad Tanveer v. The State 2012 SCMR 172; Gul Noor Ali v. The State 2015 SCMR 279; Irfan Ali v. The State 2015 SCMR 840; Muhammad Mushtaq v. Mustansar Hussain and others 2016 SCMR 2123; Azeem Khan and others v. Mujahid Khan and others 2016 SCMR 274; Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596; Zahir Yousaf and another v. The State and another 2017 SCMR 2002; Ali Sawar v. State 2019 PCr.LJ 1142; Said Muhammad v. The State 1999 SCMR 2758; Dr. Javaid Akhtar v. The State PLD 2007 SC 249; Rajab alias Rajoo alias Nang and another v. The State 2006 SCMR 175; Ajab alias Rajab and another v. The State 2004 MLD 180; Ghulam Hussain Soomro v. The State PLD 2007 SC 71; Sh. Muhammad Amjad v. The State PLD 2003 SC 704; Nazir Shehzad and another v. The State 2009 SCMR 1440; Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872; State through Advocate-General Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1 and Miss Najiba v. Ahmed Sultan 2001 SCMR 988 ref.

Azeem Khan v. Mujahid Khan 2016 SCMR 274 and Fayyaz Ahmed v. State 2017 SCMR 2026 rel.

----Ss. 302, 365-A, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security etc., abetment, common intention, act of terrorism---Appreciation of evidence---Extra-judicial confession before police---Scope---Confession made by the accused before the police was inadmissible in law and no reliance could be placed thereon.

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

Muhammad Mansha v. State 2018 SCMR 772 rel.

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

----Ss. 302, 365-A, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security etc., abetment, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Last seen evidence---Chance witness---Scope---Accused were charged for committing murder of the father of complainant after abducting him for ransom---In the present case, the witness of last seen evidence had stated that he knew all the three accused and had seen two of them who entered the bungalow with the deceased---However, there was no evidence that he knew all the three accused let alone the deceased and as such the safer course was to hold an identification parade in order to establish his identification of the accused which was not done---Said witness appeared to be a chance witness as no record of his employment in that area had been tendered in evidence---Even otherwise since there was no evidence on record that he knew the deceased before the incident, his identification of the deceased could not be safely relied upon especially as he did not state in his evidence as to which day the deceased went into the bungalow with the accused and that the deceased was taken into the bungalow by the accused by force or against his will---Facts remained that it was 9.00 p.m. and that it would have been dark and it was not known how far away he was from the accused and the deceased when they allegedly entered the house also casted further doubt on his ability to safely identify any of the accused or the deceased---Said last seen evidence could not be safely relied upon in order to convict the accused, in circumstances.

Muhammad Abid v. State PLD 2018 SC 813 rel.

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

----Art. 117---Burden of proof---Scope---Accused was not supposed to disprove the case against him who might have taken any and as many defences as he liked to the allegations against him as the onus rested on the prosecution to prove its case beyond reasonable doubt.

Muhammed Shah v. State 2010 SCMR 1009 rel.

(g) Criminal trial---

----Benefit of doubt---Principle---If there is any doubt in the prosecution case, its benefit must go to the accused.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

(h) Criminal trial---

----Benefit of doubt---Principle---If there is a single circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then the accused will be entitled to its benefit not as a matter of grace and concession but as a matter of right.

Abdul Jabbar v. State 2019 SCMR 129 rel.

Syed Zakir Hussain and Azam Khan for Appellants/Respondents.

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

M. Naeem for the Complainant.

YLR 2022 KARACHI HIGH COURT SINDH 119 #

2022 Y L R 119

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

MUHAMMAD RASHID and another---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 249 and 250 and Confirmation Case No.11 of 2018, decided on 20th August, 2019.

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

----Ss. 302, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, abetment, common intention, act of terrorism, possession of unlicensed weapon---Appreciation of evidence---Sentence, reduction in---Delay of four days in lodging the FIR---Effect---Accused were charged for committing murder of the deceased by firing and also made aerial firing creating terror in the area---Four days delay in lodging the FIR---Background of the case adequately explained the delay in filing the FIR---Evidence of the complainant showed that he asked the relatives of the deceased and was awaiting for them, who were present with the deceased when she died at hospital, to register the FIR---When the relatives failed to do so SHO registered the FIR on behalf of the State without nominating the accused persons in the FIR---Delay in lodging the FIR was not fatal, in circumstances---Appeal against conviction was dismissed with reduction in sentence.

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

----Ss. 302, 109 & 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. 161---Qatl-i-amd, abetment, common intention, act of terrorism, possession of unlicensed weapon---Appreciation of evidence---Sentence, reduction in---Delay of five days in recording the statement of witness by the police---Effect---Accused were charged for committing murder of the deceased by firing and also made aerial firing creating terror in the area---Incident took place on 18-05-2013 at night-time, the FIR was lodged four days later on 22-05-2013 and statement of the eye-witness under S.161, Cr.P.C., was recorded on 23-05-2013---Such was not unreasonable delay in recording of eye-witness's S. 161 statement---Appeal against conviction was dismissed with reduction in sentence.

----Extra judicial confession---Scope---Confession before the police was inadmissible in the eyes of the law.

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

----Ss. 302, 109 & 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. 161---Qatl-i-amd, abetment, common intention, act of terrorism, possession of unlicensed weapon---Appreciation of evidence---Sentence, reduction in---Recovery of sikka and the empties---Scope---Delay in sending the sikka and empties for analysis---Effect---Accused were charged for committing murder of the deceased by firing and also made aerial firing creating terror in the area---Record showed that there was no delay in sending the sikka and empties to the Forensic Science Laboratory for its report as they were sent to the Forensic Science Laboratory after four days and later married with the pistol recovered from co-accused and as such could be used as corroborative evidence against the co-accused--- Appeal against conviction was dismissed with reduction in sentence.

(e) Criminal trial---

----Witness---Statement of sole eye-witness---Conviction---Scope--- Conviction could be made on the evidence of sole evidence if found to be trustworthy, reliable and confidence inspiring.

Muhammad Ehsan v. The State 2006 SCMR 1857 rel.

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

----Ss. 302, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, abetment, common intention, act of terrorism, possession of unlicensed weapon---Appreciation of evidence---Sentence, modification of---Accused were charged for committing murder of the deceased by firing and also made aerial firing creating terror in the area---Ocular account had been furnished by sole eye-witness---Record showed that no material contradictions were found in the evidence of the witnesses---Sole eye-witness, who was the driver of the deceased and was not a chance witness, had been working with the deceased for a number of years and was even living in the servant quarters with his family at the deceased's bungalow---Said witness was regarded as a member of the family and his presence at the scene of the crime was not disputed by the defence at trial during cross-examination---Presence of said witness at the scene was natural---Evidence of said witness was precise and to the point---Said witness had no enmity with the accused, he was not an interested witness or related to the deceased in any way---Witness had no reason not to tell the truth---Evidence of said witness was not shaken during cross-examination---Said witness was even honest enough in his evidence to admit that he could only identify the two convicted accused and not the acquitted accused---Evidence of said witness was reliable, trustworthy and confidence inspiring and accused could be convicted on his evidence which was also supported/corroborated by the medical evidence to a large extent---Murder was not committed in a brutal manner by accused and co-accused did not personally murder the deceased and his hulia was not well described in the FIR---Prosecution had proved its case against both the accused persons beyond reasonable doubt---Exercising judicial discretion by the Court, death sentences of both the accused persons were modified into imprisonment for life---Appeal against conviction was dismissed with said modification in sentence. [p. 130] F & G

Faheem Ali v. The State 2019 MLD 468; Abdul Qayoom and another v. The State 2018 PCr.LJ Note 229; Tahir Mehmood alias Achoo v. The State 2018 SCMR 169; Muhammad Aslam v. Sabir Hussain and others 2009 SCMR 985; Muhammad Nadeem alias Banka v. The State 2011 SCMR 1517; Ghulam Akbar and others v. The State 2007 YLR 1506; Ali Sher and others v. The State 2008 SCMR 707; Umer Khursheed and another v. Syed Tufail Ahmad 2018 SCMR 1051; Hayatullah v. The State 2018 SCMR 2092; Muhammad Shah v. The State 2010 SCMR 1009; Sabir Ali v. The State 2011 SCMR 629; Wahab Ali and another v. The State 2010 PCr.LJ 157; Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Rahat Ali v. The State 2010 SCMR 584; Muhammad Asif v. The State 2017 SCMR 486; Shoukat Ali v. The State PLD 2007 SC 93; Ahmad Nawaz and others v. The State 2016 PCr.LJ 1267; Budho v. The State PLD 1965 (W.P) Kar. 76; Jalal v. The State PLD 1973 Kar. 693; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Javed Khan alias Bacha and another v. The State 2017 SCMR 524; Tariq Pervez v. The State 1995 SCMR 1345; Mian Sohail Ahmed and others v. The State 2019 SCMR 956; Nazir and 2 others v. The State 2018 PCr.LJ Note 14; Majeed alias Majeedi and others v. The State 2019 SCMR 301; State through Advocate General Sindh v. Farman Hussain and others PLD 1995 SC 1; Asghar Ali alias Sabah and others v. The State 1992 SCMR 2088; Kamal Din alias Kamala v. The State 2018 SCMR 577; Gulfam and another v. The State 2017 SCMR 1189; Syed Zaki Kazmi v. The State 2018 PCr.LJ 976; Tahir Javed v. The State 2009 SCMR 166; Muhammad Shafi alias Kuddoo v. The State 2019 SCMR 1045; Muhammad Sharifan Bibi v. Muhammad Yasin and others 2012 SCMR 82; Abdul Jabbar and another v. The State 2019 SCMR 129; Muhammad Arif v. The State 2019 SCMR 631; Muhammad Ali v. The State 1999 SCMR 1957; Sikandar v. The State 2006 SCMR 1786; Muhammad Ehsan v. The State 2006 SCMR 1857; Muhammad Sohail Naveed v. The State 1992 PCr.LJ 1339; Noor Zaman v. The State 2005 PCr.LJ 2016; Rafaqat Ali v. The State 2016 SCMR 1766; Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427; Arif Masih and another v. The State PLD 2001 SC 398; Abdul Rauf v. The State 2003 SCMR 522 and Ghazanfar Ali alias Pappu and another v. The State 2012 SCMR 215 ref.

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

----Ss. 302, 109 & 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. 161---Qatl-i-amd, abetment, common intention, act of terrorism, possession of unlicensed weapon---Appreciation of evidence---Oral and medical evidence--- Conflict---Effect---Accused were charged for committing murder of the deceased by firing and also made aerial firing creating terror in the area---According to eye-witness, deceased had received two bullet wounds whereas per post-mortem report he received only one bullet wound---Said discrepancy was not sufficient to extend the benefit of doubt to the accused---Appeal against conviction was dismissed.

Muhammed Riaz v. Muhammed Zaman PLD 2005 SC 484; Muhammed Hanif v. The State PLD 1993 SC 895 and Amir Khan v. The State 2000 SCMR 1885 rel.

(h) Criminal trial---

----Evidence--- Oral and medical evidence--- Conflict--- Effect--- Oral evidence would take preference over medical evidence when in conflict.

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

----Ss. 302, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, abetment, common intention, act of terrorism, possession of unlicensed weapon---Appreciation of evidence---Test identification parade--- Scope---Accused were charged for committing murder of the deceased by firing and also made aerial firing creating terror in the area---Night time incident but there was sufficient light for the eye-witness to identify the accused---Incident having taken place right in front of the eye-witness and he was able to observe the two accused for at least one minute from close range---Sufficient hulia was also given of accused in the FIR to whom the specific role of shooting the deceased was given and to a lesser extent to co-accused who was given the specific role of remaining on the motor bike during the murder---Eye-witness was able to correctly identify the accused and pick them out of the identification parade---No legal defects in the identification parade was found to hold the same unreliable or inadmissible---Delay in holding the identification parade had been explained by witness who held the identification parade on account of his being on leave---Eye-witness had no opportunity to see the accused after the incident before identifying them at the identification parade as he had already moved to another province prior to that time and before the accused were arrested---Incident having occurred only eighteen months before the identification parade and the eye-witness had a clear unobstructed view of the murder therefore the time lapse did not affect his ability to correctly identify the accused at the identification parade---Murder was not carried out in a brutal manner by the accused and the co-accused did not personally murder the deceased and his hulia was not well described in the FIR---Some minor doubt in prosecution case was not enough to hold that the prosecution had not proved its case against both the accused beyond reasonable doubt---High Court, by exercising judicial discretion, modified the sentence from death to imprisonment for life--- Appeal against conviction was dismissed with said modification.

Nasrullah Khan v. State 2010 SCMR 881; Kanwar Anwaar Ali's case PLD 2019 SC 488 and Ghual Mohy-Ud-Din v. State 2014 SCMR 1034 rel.

Abdul Razzak and Mamoon A.K. Sherwani for Appellants.

Muhammad Iqbal Awan, Deputy Prosecutor General Sindh and Mushtaq Ahmed Jehangiri, Special Prosecutor for Rangers for Respondent.

YLR 2022 KARACHI HIGH COURT SINDH 156 #

2022 Y L R 156

[Sindh (Larkana Bench)]

Before Khadim Hussain M. Shaikh, J

Haji DOST MUHAMMAD NOONARI---Appellant

Versus

Mir AHMED NOONARI and another---Respondents

Criminal Acquittal Appeal No.S-12 of 2018, decided on 4th November, 2019.

(a) Appeal against acquittal---

----Double presumption of innocence---Interference---Scope---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 and while evaluating the evidence, difference was to be maintained in an appeal from conviction and an acquittal appeal---In the letter case, the interference was to be made only when there was non-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. 467, 468 & 471---Prevention of Corruption Act (II of 1947 ), S. 5(2)---Forgery for valuable security, forged document, using as genuine a forged document, presumption where public servant accepts gratification other than legal remuneration---Appreciation of evidence---Appeal against acquittal---Prosecution case was that the accused by producing a fake and fraudulent certificate of shorthand succeeded in getting promotion as Senior Stenographer---Record showed that there was delay of more than 25 years in lodgement of the FIR---Alleged shorthand certificate issued in the year 1990 was allegedly used in the year 1991, whereas the application, which was culminated into the subject FIR in the year 2016 was moved by the complainant in the year 2011---Record showed that complainant had lodged FIR during 2010 for offence under S.302, P.P.C. against accused of present case and his nephews and other relatives regarding murder of his son coupled with two other FIRs against the accused and others---Subject application was moved by complainant after more than two decades that too after the murderous enmity between the complainant and the accused---Record further revealed that the complainant had also submitted an application to the Secretary to Chief Minister Inspection and Evaluation Team, in which the Deputy Commissioner had allegedly conducted the enquiry and found the application of complainant baseless---Record further revealed that on the complaint of the complainant enquiry was conducted by the Circle Officer, Anti Corruption Establishment, who submitted report to the effect that the allegations levelled by the complainant were not proved against the accused and had recommended for closure of the investigation---Admittedly, Investigating Officer had not enquired about the alleged certificate from the Social Welfare Department and was not got verified from the concerned department nor the evidence of the relevant person was recorded during the investigation---Complainant had stated that he got the certificate verified from the concerned department, but said verification letter was not brought on record during the trial---Impugned judgment revealed that the Trial Court had properly dealt with the evidence of the parties having pointed out the material discrepancies, infirmities, and glaring contradictions etc. therein---Circumstances established that the conclusion of acquittal arrived at by the Trial Court based on appreciation of evidence could not be termed to be arbitrary, fanciful, artificial, shocking and ridiculous, therefore, the impugned acquittal judgment did not call for interference---Appeal against acquittal was dismissed, in circumstances.

Saeed Ahmed Bijarani for Appellant.

Khadim Hussain Khoso for Respondent No.1.

Ali Anwar Kandhro, Additional Prosecutor General for the State.

YLR 2022 KARACHI HIGH COURT SINDH 185 #

2022 Y L R 185

[Sindh]

Before Mrs. Rashida Asad, J

MUHAMMAD HUSSAIN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 1915 of 2019, decided on 23rd June, 2020.

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

----S. 498---Gas (Theft Control and Recovery) Act (XI of 2016), Ss. 15 & 24---Tampering with auxiliary or distribution pipelines of natural gas---Pre-arrest bail, refusal of---Scope---Accused was alleged to have been found involved in theft of natural gas through a rubber pipe for running his sweets and bakery shop---Ownership of the bakery was not denied by the accused---Prior to filing the present FIR, another FIR was registered against the son of accused wherein he was involved in the case of theft of gas for running the same bakery---Nothing was available on record to show that the accused had applied for a legal gas connection after removal of the earlier illegal connection---Statements of witnesses/functionaries of State, having no animus or malice, were duly corroborated by the material secured from the spot, which prima facie, suggested that the prosecution had sufficient evidence against the accused to connect him with the commission of alleged offence---Constitutional Petition for grant of pre-arrest bail was dismissed, in circumstances.

2016 SCMR 1282 and 2019 SCMR 1457 ref.

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

----S. 498---Pre-arrest bail---Scope---Bail before arrest is an extraordinary relief granted only in extraordinary situations to protect the innocent person against victimization---Such relief is not to be used as a substitute or as an alternate for post-arrest bail---Bail before arrest cannot be granted unless the person seeking it establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence and there were, in fact, sufficient grounds warranting further inquiry into his guilt and in addition thereto, he must also show that his arrest was being sought for ulterior motive, particularly on the part of the police, to cause him irreparable humiliation and to disgrace and dishonour him.

----Ss. 497 & 403---Constitution of Pakistan, Art. 13---Bail---Protection against double punishment and self-incrimination---Person once convicted or acquitted not to be tried for same offence---Scope---When an offence besides being punishable for imprisonment is also punishable alternatively with fine then the accused shall be entitled to bail as of right because if at the trial he is sentenced with fine only then his period as under trial prisoner, due to refusal of bail, shall amount to a case of double jeopardy and similarly, while dealing with such like cases, the refusal of bail would also be in contravention of Art. 13(a) of the Constitution of Islamic Republic of Pakistan, 1973, which embodies the provisions of the maxim nemo debet bis vexari pro eadem causa (No person should be twice disturbed for the same cause) as well as S.403, Cr.P.C.

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

----S. 497---Bail---Delayed FIR---Effect---Delay by itself 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.

Syed Shahid Mushtaq for Applicant.

Malik Sadaqat Khan, Special Prosecutor, S.S.G.C. for Respondent.

YLR 2022 KARACHI HIGH COURT SINDH 217 #

2022 Y L R 217

[Sindh]

Before Mohammad Karim Khan Agha and Amjad Ali Sahito, JJ

AHMAD OMAR SHEIKH and 3 others---Petitioners

Versus

GOVERNMENT OF SINDH through Chief Secretary and 6 others---Respondents

Constitutional Petition No. 3507 of 2020, decided on 24th December, 2020.

(a) Sindh Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Anti-Terrorism Act (XXVII of 1997), Ss. 11-EEE, 11-EE & Fourth Sched.--- Constitution of Pakistan, Art. 199---Constitutional petition---Power to arrest and detain suspected persons---Proscription of persons---Scope---Petitioners challenged three separate preventive detention orders (PDOs) issued by the Provincial Government for a period of three months one after the other and a notification placing the names of petitioners on the Fourth Sched. of the Anti-Terrorism Act, 1997---Validity---Petitioners were earlier convicted for the kidnapping and murder of an American journalist, however, later on except one all were acquitted---Upon announcement of the acquittal order, the Government issued successive PDOs---Petitioners, for the last 18 years, had been in jail either as under trial prisoners or convicts---During this time no material had come on record that any of the petitioners were associating themselves with any banned organization or proscribed person through prison visits, intercepts, video recordings, etc.---If the petitioners were regarded so dangerous terrorists then why were their names not put on the Fourth Sched. prior to the abduction and murder in the year 2002---Names of petitioners were only placed on the Fourth Sched. to justify their detention under S.11-EEE, Anti-Terrorism Act, 1997, despite there being no material before the Provincial Government to show that any of the petitioners belonged to a banned organization or would involve himself in terrorist acts on his release---Even the reasons for placing the names of petitioners on the Fourth Sched. were spurious and without justification---Third Preventive Detention Order (PDO) was struck down as being illegal and issued without lawful authority---Notification placing the petitioners in the Fourth Sched. was also struck down as having been issued without lawful authority and on account of mala fides---Petitioners were directed to be released forthwith and were not to be detained under any further PDO without the permission of the High Court---Constitutional petition was allowed, in circumstances.

Muhammad Adeel v. Government of Punjab 2015 YLR 2422; Tariq Shah v. Provincial Police Officer Khyber Pakhtunkhwa Peshawar 2018 PCr.LJ 947; Khawaja Mureed Hussain v. Government of the Punjab, Home Department, Lahore 2013 PCr.LJ 312; Muhammad Irshad v. Government of Punjab and others 2020 PCr.LJ 206; Dr. Niaz Ahmed v. D.C.O. and others PLD 2014 Lah. 516; Javed Iqbal v. Government of the Punjab and another 2014 MLD 1308; Syed Ghazanfar Kazmi v. Government of Khyber Pakhtunkhwa and others PLD 2017 Pesh. 105; Maulvi Farid Ahmad v. Government of West Pakistan PLD 1965 (W.P.) Lah. 135; Khawaja Salman Rafique v. National Accountability Bureau PLD 2020 SC 456 and Mst. Aziza Naeem v. Government of Sindh (C.P. No. D-3275 of 2020 dated 21.12.2020) ref.

Siddharam Satlingappa Mhetre's case AIR 2011 SC 312; Federation of Pakistan v. Mrs. Amatul Jalil Khawaja and others PLD 2003 SC 442 and Khawaja Salman Rafique v. National Accountability Bureau PLD 2020 SC 456 rel.

(b) Sindh Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Anti-Terrorism Act (XXVII of 1997), Ss. 11-EEE, 11-EE & Fourth Sched.---Constitution of Pakistan, Arts. 199 & 10---Constitutional petition---Safeguards as to arrest and detention---Power to arrest and detain suspected persons---Proscription of persons---Enemy alien--- Scope--- Petitioners challenged three separate Preventive Detention Orders (PDOs) issued by the Provincial Government for a period of three months one after the other and a notification placing the names of petitioners on the Fourth Sched. of the Anti-Terrorism Act, 1997---Argument of Government was that all the petitioners were "enemy aliens" and as such Art. 10 of the Constitution was not applicable to them---Validity---"Enemy aliens" were a class of persons who were not nationals in the State in which they were residing and their State of origin was in a declared war with the State where they were residing---Such would indicate persons who might have been nationals of the State but had their origin in the State with which the State they were currently residing in was at war---All the petitioners were Pakistani nationals---One of the petitioners held dual nationality, however whilst he was in Pakistan his Pakistani nationality prevailed over his other nationality---Petitioners, at best, were terrorists/ militants who at this point in time were not proven to belong to any banned organization in Pakistan---Pakistan was not involved in any declared international armed conflict nor in any declared internal armed conflict---Pakistan was fighting groups which could be described as insurgents, terrorists and/or militants mainly of an internal nature---Petitioners were declared to be not "enemy alien" and as such Art. 10(9) of the Constitution was not applicable to any of them---Constitutional petition was allowed, in circumstances.

Black's Law Dictionary (6th Edn.); Collins English on line Dictionary; On Line Dictionary.com; Free Dictionary on line and Encyclopedia Britannica (on line) rel.

----Art. 10---Safeguards as to arrest and detention---Enemy alien---Scope---Person may be considered as an "enemy alien" if he is a non-Pakistani citizen living in Pakistan when Pakistan was in a declared war with another State and that person was from that other State which Pakistan was at war with and could be considered as a spy or a saboteur who was assisting the enemy State in its conflict against Pakistan---Proper legal approach would most likely be to intern that person especially if he was a citizen against whom there was no cogent evidence of collaborating with the enemy or to try him as spy as the case may be.

(d) Actions (in Aid of Civil Power) Regulation, 2011--

---Regln. 2(l)--- Miscreants--- Enemy alien---Scope---Non-use of the words "enemy alien" in Regln. 2(l) of the Actions (in Aid of Civil Power) Regulation, 2011 and "miscreants" instead was because the legislature intended to include Pakistani nationals in this piece of legislation as well as non-Nationals which would not be in consonance with the definition of "enemy alien" who had to be non-Pakistani national.

(e) Protection of Pakistan Act (X of 2014)---

----S. 2(d)---Enemy alien---Scope---Pre-condition for a person to be considered as "enemy alien" under Protection of Pakistan Act, 2014 is that he is not a Pakistani national.

(f) Sindh Maintenance of Public Order Ordinance (XXXI of 1960)---

---S. 3---Anti-Terrorism Act (XXVII of 1997), S. 11-EE---Arrest and detention of suspected persons---Satisfaction of Government---Scope---Requirement of satisfaction should be based on the subjective assessment of material as opposed to an objective satisfaction.

Liversidge v. Anderson and another (All England Law Reports Annotated 338), 1941 distinguished.

Ghulam Jilani v. Government of West Pakistan PLD 1967 SC 373 ref.

Mir Abdul Baqi Baluch v. Government of Pakistan and others PLD 1968 SC 313 and Federation of Pakistan v. Mrs. Amatul Jalil Khawaja and others PLD 2003 SC 442 rel.

(g) Constitution of Pakistan---

----Art. 10---Safeguards as to arrest and detention---Scope---Power of arrest, the power to detain someone without charge and deprive them of their liberty cannot be used in a whimsical or arbitrary manner but must be based on solid, cogent, reliable material and must be anchored on a bona fide exercise of such power.

Tariq Shah v. Provincial Police Officer Khyber Pakhtunkhwa Peshawar 2018 PCr.LJ 947 rel.

(h) Constitution of Pakistan---

----Art. 10---Safeguards as to arrest and detention--- Scope--- In particular, especially during challenging times, the courts must ensure the Constitutional guarantees/protections provided to the citizens of the country through the Constitution and protect them from any misuse or abuse by the executive authorities especially when the liberty of the individual is at stake which is one of the most important fundamental rights guaranteed by the Constitution---Without the jealous protection of liberty and other fundamental rights by the courts people are nowhere both as a State and citizen of that State and the road to chaos and tyranny would not be far away.

Khawaja Salman Rafique v. National Accountability Bureau PLD 2020 SC 456 rel.

(i) Constitution of Pakistan---

----Art. 199---Constitutional petition---Objection on constitution of High Court Bench---Bias---Scope---State objected that the Bench should not hear the case because the Bench had already made up its mind in the petition as it had already passed an order which was similar to the present petition and as such the matter should be placed before another Bench of High Court for hearing, excluding the members of present Bench---Held; members of the Bench might have already passed an order in a similar case but in any event if the matter was placed before another DB (Division Bench) of High Court such DB would be bound to follow the order of present DB so no useful purpose would be served in transferring the petition to another DB of High Court---Proper approach would have been for the State to have challenged the earlier order before the Supreme Court---Each case was to be decided on its own particulars, facts and circumstances---Objection was overruled.

(j) Constitution of Pakistan---

----Preamble, Arts. 2A, 4, 8, 9, 10, 10A, 14, 15 & 25---Right of individuals to be dealt in accordance with law---Laws inconsistent with or in derogation of Fundamental Rights to be void---Security of person---Safeguards as to arrest and detention--- Right to fair trial---Inviolability of dignity of man---Freedom of movement---Equality of citizens---Scope---Pakistan is governed by the Constitution as amended from time to time which is a blend of secular law and Islamic law as is made clear by both the Preamble of the Constitution and the Objectives Resolution at Art. 2-A which form a part of the Constitution---When the Constitution is read in a holistic manner it is apparent that the form of Government in Pakistan is one of parliamentary democracy based on the trichotomy of powers between the Executive, Legislature and the judiciary where checks and balances on each organ's powers are ensured by the other organs of the State---Constitution through numerous of its Articles ensures the independence of the Judiciary and the rule of law and the due process rights of its citizens as would be expected in any civilized society and Islamic welfare State---One of the key attributes of the Constitution is that it seeks to protect and safeguard the rights of the individual from misuse or abuse of executive power and does so by enshrining a number of fundamental rights which are found in Chapter one of the Constitution which aims to strike a fair balance in respect of legal and legitimate preventive detention of citizens in appropriate cases in the interest of the State based on sound reasons and prevent such detention being misused for ulterior purposes by the executive.

(k) Interpretation of statutes---

----If a statute has expressly provided for something without any ambiguity then there is no question of the courts interpreting the same as the legislative intent is clear and the Act/Ordinance must be given effect to unless it is deemed to be contrary to the Constitution--- Judiciary's role of interpretation of the statute only arises when the statute is to a certain extent either unclear or ambiguous or is prima facie in violation of the Constitution and in such cases it is for the judiciary to interpret that piece of legislation by trying to ascertain the intent of Parliament in passing that legislation.

Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483 rel.

Mehmood A. Shaikh, Abdul Rauf Shaikh and Nadeem Ahmed Azar for Petitioners.

Salman Talibuddin, Advocate General Sindh along with Muhammad Yousuf Rahpoto, Assistant Advocate General Sindh, Ali Haider Saleem, D.P.G., Gul Faraz Khatak, A.A.G., Amir Kuvshesi, Special Secretary, Baber Qadeer, AS and Aijaz Bhatti, SO, Home Department, Government of Sindh for Respondents.

YLR 2022 KARACHI HIGH COURT SINDH 281 #

2022 Y L R 281

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

HAJI and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-23 of 2016, decided on 20th March, 2020.

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

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

----Ss. 460, 459, 404 & 337-H(2)---Persons jointly concerned in lurking house trespass or house breaking by night punishable for qatl or hurt caused by one of them, hurt caused whilst committing lurking house trespass or house breaking, dishonest misappropriation of property possessed by deceased person at the time of his death, rash or negligent act---Appreciation of evidence---Recovery of weapon and crime empties on the pointation of accused--- Reliance---Scope---Allegations against the accused persons were that they entered into the house of complainant, committed the murder of the father of complainant and injured a minor girl, took away cash, gun and mobile phone and other valuable articles made aerial firing and ran away---Investigating Officer had deposed that on the same day at 1.45 p.m., he took out accused from police lock-up vide entry and during his interrogation, the accused admitted his guilt and showed his willingness to produce the gun used in the crime---Accused proceeded along with Police Officials and reached the pointed place, where the accused produced one SBBL gun lying in the bushes---Gun was not loaded while three live cartridges were lying in a separate bag---Mashir deposed that, Investigation Officer appointed him the mashir of inspection of the place of the incident where the dead body of deceased was lying on the cot---Investigating Officer prepared inquest report and recovered ten empties of 12-bore cartridges and 15 empties of Kalashnikov and prepared such mashirnamas---Investigating Officer also prepared mashirnama of last worn clothes of deceased obtained from Medical Officer---Witness further deposed that on 26.04.2013, accused were arrested and Investigating Officer prepared such mashirnama in his presence---Investigation Officer had also recovered scissors from accused and gun from co-accused along with four live cartridges---Mashir did not depose about the date and time of recovery of crime articles from accused nor pointed out the place of recovery in his examination-in-chief--- During cross-examination, witness stated that Investigating Officer had taken bloodstained earth in his presence whereas Investigating Officer negated the same---Mashir further stated in his cross-examination that the lock of outer door was in cutting condition but the police had not collected the same whereas he stated that in mashirnama of inspection of the place of incident, it was mentioned that Investigating Officer collected ten empties of Kalashnikov and 15 empties of cartridges of 12-bore---Witness also admitted that the empties of Kalashnikov available in court were ten (10) in number---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)---

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

----Ss. 460, 459, 404 & 337-H(2)---Criminal Procedure Code (V of 1898), S. 342---Persons jointly concerned in lurking house trespass or house breaking by night punishable for qatl or hurt caused by one of them, hurt caused whilst committing lurking house trespass or house breaking, dishonest misappropriation of property possessed by deceased person at the time of his death, rash or negligent act---Appreciation of evidence---Examination of accused by the court---Scope---Allegations against the accused persons were that they entered into the house of complainant, committed the murder of the father of complainant and injured a minor girl, took away cash, gun and mobile phone by the accused and other valuable articles made aerial firing and ran away---Record showed that the statements of accused under S.342, Cr.P.C. revealed that incriminating piece of material viz. post mortem and other medical evidence, recovery of crime weapons, recovery of empties from the place of the incident had been not put to accused while recording their statements under section 342 Cr.P.C.---Appeal against conviction was allowed, in circumstances.

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

----S. 342---Examination of accused by the court--- Scope--- Incriminating evidence available on record in the shape of examination-in-chief, cross-examination or re-examination of witnesses were required to be put to the accused if the same were against him while recording his statement under S.342, Cr.P.C.---Purpose was to enabling the accused to explain any circumstances appearing in the evidence against him---Said provision of law demonstrated that not only the circumstances appearing in the examination-in-chief were to be put to the accused but circumstances appearing in cross-examination or re-examination were also required to be put to the accused if they were against him, because the "evidence" meant examination-in-chief, cross-examination and re-examination, as provided under Art.132 read with Arts. 2(c) & 71 of Qanun-e-Shahadat, 1984.

Muhammad Shah v. The State 2010 SCMR 1009; 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.

(g) Criminal trial---

----Benefit of doubt---Principle---Single doubt in the prosecution story is disastrous and its benefit will go to the accused.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Iftikhar Ali Arain for Appellants.

Abdul Rehman Kolachi, Deputy Prosecutor General for Respondent.

YLR 2022 KARACHI HIGH COURT SINDH 299 #

2022 Y L R 299

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Khadim Hussain Tunio, JJ

MASTER JUMAN BURIRO---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos.D-237, D-240 and Criminal Revision Application No. D-108 of 2012, decided on 29th January, 2020.

(a) Criminal trial---

----Conviction---Heinousness of the offence---Scope---Mere heinousness of the offence was not sufficient to convict the accused because the accused continued with presumption of innocence until found otherwise at the end of the trial.

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

----Art. 117---Burden of proof---Scope---Burden is always upon the prosecution to prove its case beyond shadow of doubt.

----Ss. 365-A, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for extorting property, valuable security, etc., abetment, common intention, act of terrorism---Appreciation of evidence---Delay of about more than two days in lodging the FIR---Effect---Accused were charged for kidnapping the brother of complainant for ransom---Delay of two days in lodging the FIR which had not been plausibly explained by the prosecution was fatal to the prosecution case.

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

----Ss. 365-A, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for extorting property, valuable security, etc., abetment, common intention, act of terrorism---Appreciation of evidence---Accused were charged for kidnapping the brother of complainant for ransom---Record showed that the accused were not named in the FIR but the allegation against them was that when abductee along with his guards duly armed with their licensed repeaters was going to his land in Jeep, they kidnapped him for the purpose of ransom amount---Allegedly, abductee was released after paying the ransom money---Said fact had been denied by the accused in their respective statements recorded under S.342, Cr.P.C.---Abductee as well as his two guards were duly armed with repeaters at the time of alleged incident but they did not use the said weapons in their defence---Nothing was available on record that alleged abductee and his guards had made any effort to make resistance against his abduction---Allegedly, three accused came on a red colour motorcycle whereas remaining accused came in a white colour car and on force of their weapons kidnapped the victim---No description of any of the accused was mentioned either in FIR or police investigation as to who came on red colour motorcycle and who in white colour car---Said aspects of the case showed that the incident had not taken place in a manner as stated in the FIR---Circumstances established that prosecution had failed to prove its case against the accused beyond any shadow of reasonable doubt.

Gulfam and another v. The State 2017 SCMR 1189 rel.

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

----Ss. 365-A, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 22---Kidnapping or abduction for extorting property, valuable security, etc., abetment, common intention, act of terrorism---Appreciation of evidence---Test identification parade---Infirmities---Accused were charged for kidnapping the brother of complainant for ransom---Identification parade of the accused before Judicial Magistrate was held after about 13 days of the arrest through abductee, whereas no identification parade of the remaining co-accused was held---No explanation of any sort for such inordinate delay in holding identification parade had been furnished---Memo of identification parade revealed that alleged abductee, during the course of identification parade, did not point out at the accused persons by discribing their role in the commission of alleged offence; such identification parade was not held in accordance with the principles of law, which casted serious dent upon the same---Memo of identification revealed that names of the dummies standing in the row at the time of such parade, were not mentioned therein---No identification parade had been held through eye-witnesses of the incident---In the memo of identification parade produced by the Judicial Magistrate in his evidence, a column of signature of Investigating Officer was available; in original of the same the signature(s) was not available but in the copy supplied to accused, signature of Investigating Officer was available---Said lacuna/ infirmity in the memo of identification parade also created serious doubt---Circumstances established that prosecution had failed to prove its case against the accused beyond any shadow of reasonable doubt---Appeal against conviction was allowed.

PLD 2019 SC 488 rel.

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

----Art. 22---Test identification parade---Joint identification parade---Scope---Holding of joint identification parade of multiple accused persons in one go not approved.

Lal Pasand v. The State PLD 1981 SC 142; Bacha Zeb v. The State 2010 SCMR 1189; Shafqat Mehmood and others v. The State 2011 SCMR 537 and Gulfam and another v. The State 2017 SCMR 1189 rel.

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

----Ss. 365-A, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for extorting property, valuable security, etc., abetment, common intention, act of terrorism---Appreciation of evidence---Rule of consistency--- Scope--- Accused were charged for kidnapping the brother of complainant for ransom---Record transpired that co-accused on the basis of same set of evidence had been acquitted by the Trial Court and the appeal filed by the complainant against the acquittal had also been dismissed---Nothing was available on record to show that complainant had filed any further appeal against acquittal of said co-accused---Perusal of record showed that the Trial Court while disbelieving the evidence of the prosecution witnesses against the said co-accused, on the basis of same set of evidence, had convicted the present accused which was in clear violation of rule of consistency---Rule of consistency demanded that if prosecution evidence had been disbelieved in respect of a co-accused, the same could not be relied upon for convicting other accused, unless corroborated by the evidence which came from the unimpeachable independent source, which was lacking in the present case---Appeal against conviction was allowed, in circumstances.

Muhammad Asif v. The State 2017 SCMR 486 rel.

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

----Ss. 365-A, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for extorting property, valuable security, etc., abetment, common intention, act of terrorism---Appreciation of evidence---Contradictions in the statements of witnesses--- Scope--- Accused were charged for kidnapping the brother of complainant for ransom---Record revealed that complainant stated in the FIR that a guard had informed him about the incident but in his 161, Cr.P.C. statement said guard stated that another guard had informed the complainant on telephone---Prosecution case was that during the period when alleged abductee was kept by the accused in their captivity, the accused had made conversation/several calls to the complainant party with regard to payment of ransom amount---However, no CDR/voice record transcript in order to prove such conversation/calls as well as to show the ownership of said mobile phone(s) had been brought on record neither from the area wherefrom the said calls were made nor from the area of their receiving---Circumstances established that prosecution had failed to prove its case against the accused beyond any shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 365-A, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for extorting property, valuable security, etc., abetment, common intention, act of terrorism---Appreciation of evidence---Recovery of ransom amount from the accused---Reliance---Scope---Accused were charged for kidnapping the brother of complainant for ransom---Prosecution case was that after arrest of accused, police also made recovery of some of the ransom amount from them---Denomination of such currency notes had not been mentioned in the memo of recovery---No identification memo of recovered currency notes was prepared by Investigating Officer to show that the recovered notes were the same which were allegedly delivered to accused persons as ransom amount by the complainant; in absence thereof, the recovery of currency notes (alleged ransom amount) was of no avail to the prosecution---Circumstances established that prosecution had failed to prove its case against the accused beyond any shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

(j) Criminal trial---

----Benefit of doubt---Principle---If a slightest doubt is created in the prosecution case, its benefit must be extended to the accused.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Waqar Ahmed Memon for Appellant (in Criminal Appeal No.D-237 of 2012 and Respondent No.7 in Cr. Rev. A. No.D-108 of 2012).

Wazeer Hussain Khoso and Mian Taj Muhammad Keerio for Appellants (in Cr. Appeal No.D-240 of 2012).

Muhammad Hashim Laghari for Applicant (in Cr. Rev. A. No.D-108 of 2012).

Ms. Nasira Shaikh for Respondents Nos. 1 to 3 and 6 (in Cr. Rev. A. No.D-108 of 2012).

Shahzado Saleem Nahyoon, Deputy Prosecutor General, Sindh for the State.

Badal Gahoti for the Complainant (in both Cr. Appeals)

YLR 2022 KARACHI HIGH COURT SINDH 324 #

2022 Y L R 324

[Sindh (Sukkur Bench)]

Before Amjad Ali Sahito, J

SHARAFUDDIN alias SHARFOO and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeals Nos. S-145 and S-146 of 2009, decided on 20th March, 2020.

(a) Criminal trial---

----Evidence---Direct evidence---Scope---Direct evidence was a material to decide a fact (charge)---Failure of direct evidence was sufficient to hold a criminal charge as 'not proved' but where direct evidence remained in the field with test of its being natural and confidence inspiring then requirement of independent corroboration was only a rule of abundant caution and not a mandatory rule to be applied invariably in each case.

Muhammad Ehsan v. The State 2006 SCMR 1857 rel.

(b) 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 were charged for committing murder of the son of complainant by firing---Motive behind the occurrence was a dispute between parties over the possession of land and such cases were pending before the court of law---Complainant stated that on the day of incident he, deceased and witnesses were going to a Goth and when they reached near a hotel at about 12:30 noon, accused persons came on motorcycle and asked his son that they had asked him to withdraw the case but case had not been withdrawn and saying so they took out pistols from folds of their shalwars and straight fired at him which hit him and he fell down raising cries---Neither any mala fide had been alleged on the part of witness nor motive for giving false evidence against the accused had been suggested---Two witnesses who were shown as eye-witnesses of the incident had also supported the version of the complainant---Incident had taken place at daylight at about 12:30 p.m.---Eye-witnesses had sufficiently explained the date, time and place of occurrence as well as each and every event of the occurrence in clear manners---Eye-witnesses had also explained the mode and manner of the occurrence qua the culpability of the accused---Although, eye-witnesses were cross-examined by the defence at length but could not extract anything from them and they remained consistent on all material points---Parties were known to each other, so there was no chance of mistaken identity of the accused---Ocular account furnished by the said eye-witnesses was substantiated with medical evidence adduced by the Medical Officer, who conducted post mortem of the dead body of deceased---Circumstances established that the prosecution had successfully proved its case against the accused---Appeal against conviction was dismissed accordingly.

Iftikhar Hussain and others v. The State 2004 SCMR 1185; Syed Waris Khan v. The State 2018 MLD 422; Mian Nisar Akhtar and another v. The State 2002 MLD 372; Mubeen alias Haji Muhammad Mubeen v. The State 2006 YLR 359; Mumtaz Ali and another v. The State 2000 PCr.LJ 367; Muhammad Yakoob v. The State 2006 YLR 3147; Muhammad Sharif v. The State PLD 1973 (sic) 365; Nooh v. The State 2004 YLR 3260; Atta Muhammad v. The State 1995 SCMR 599; Mehmood Ahmad, Muhammad Safdar Nasir Ahmad v. The State and Mian Tanvir Iqbal v. Nasir Ahmad and The State 1995 SCMR 127; Muhammad Iqbal v. Abid Hussain alias Mithu 1994 SCMR 1928; Attaullah alias Qasis v. The State PLD 2006 Kar. 206; Siraj Din v. KLA and another PLD 1964 SC 26; Mst. Asia Bibi v. The State PLD 2019 SC 64; Abdul Rehman and others v. The State 1983 SCMR 958 and Mian Sohail Ahmed and others v. The State and others 2019 SCMR 956 ref.

----Witness---Natural witness---Scope---If the witnesses fell within the category of natural witnesses and detailed the manner of the incident in a confidence-inspiring manner then only escape available to the accused was to satisfactorily establish that the witnesses, in fact, were not the witnesses of truth but 'interested' ones.

Abid Ali and 2 others v. The State 2011 SCMR 208; Lal Khan v. State 2006 SCMR 1846; Farooq Khan v. The State 2008 SCMR 917; Nazir v. The State PLD 1962 SC 269 and Sheruddin v. Allhaj Rakhio 1989 SCMR 1461 rel.

(d) Criminal trial---

----Witness--- Related witnesses---Reliance---Scope---Mere relationship of eye-witnesses with the deceased alone would not support the plea of the accused that their testimonies were not worth believing.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention--- Appreciation of evidence--- Substitution was rare---Accused were charged for committing murder of the son of complainant by firing---Complainant was the father of deceased and eye-witnesses were the real brothers of the deceased, hence it was not believable that all of them agreed in replacement of real culprits with innocents/accused, when undeniably the time of incident was day-light.

Zahoor Ahmed v. The State 2007 SCMR 1519 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of crime weapon on the disclosure of accused---Reliance---Scope---Accused were charged for committing murder of the son of complainant by firing---Accused pointed place and voluntarily produced from the bushes one TT pistols and disclosed that it was same pistol with which he committed murder of deceased---Investigating Officer further deposed that he secured the pistols and sealed it on the spot and prepared mashirnama in presence of mashirs---Circumstances established that the prosecution had successfully proved its case against the accused---Appeal against conviction was dismissed accordingly.

Ali Bux and others v. The State 2018 SCMR 354 and Zahoor Ahmed v. The State 2017 SCMR 1662 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention--- Appreciation of evidence---Minor discrepancies---Effect---Accused were charged for committing murder of the son of complainant by firing---In the present case, the minor discrepancies in statements of all the eye-witnesses were not enough to demolish the case of prosecution because the discrepancies occurred on account of lapse of time which could well be ignored---Appeal against conviction was dismissed accordingly.

Zulfiquar Ahmed and other's case 2011 SCMR 492 and Ravi Kapur v. The State of Rajhistan 2013 SCMR 480 rel.

Syed Ali Aamir Shah for Appellants.

Aftab Ahmed Shar, Additional Prosecutor General for the State.

YLR 2022 KARACHI HIGH COURT SINDH 355 #

2022 Y L R 355

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi, J

IMTIAZ AHMED---Applicant

Versus

The STATE---Respondent

Criminal Bail Applications Nos. S-293 and S-310 of 2020, decided on 17th August, 2020.

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

----S. 497---Penal Code (XLV of 1860), Ss. 462-B, 462-F, 379 & 427---Tampering with petroleum pipelines, damaging or destructing the transmission or transportation lines, theft, mischief causing damage to the amount of fifty rupees---Bail, grant of---First Information Report based on hearsay evidence---Un-natural conduct---Further inquiry--- Scope--- Allegation against accused persons was that their property was being used for stealing the complainant's diesel---Nothing was recovered from the accused persons---Merely alleging that the subject land was being looked after by accused and the Hotel belonged to co-accused was not sufficient to keep the accused persons being behind bar as the same required further inquiry---Complainant was not the eye-witness of alleged incident and the entire story, narrated by him in FIR, was on hearsay basis---Raiding party of complainant company had followed the alleged pipes and immediately reached at the place of alleged incident, where accused persons were present, yet neither oil was recovered nor the raiding party tried to even catch at least one of the accused persons at the spot---One of the accused persons was a patient of old CVA (Cerebrovascular accident), hence keeping him behind the bars could be dangerous for his life---Bail applications were allowed, in circumstances.

Criminal Petitions Nos.189-K, 188-K of 2019 and Criminal Bail Applications Nos.S-160 and 162 of 2020 ref.

2016 SCMR 748 and Criminal Petition No.611-L of 2019 distinguished.

Himesh Khan v. The National Accountability Bureau (NAB) Lahore and others 2015 SCMR 1092 rel.

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

----S. 497---Bail---Precedent---Scope---Precedents in bail matters are of no help to a party, as it varies from case to case depending upon the facts of each case---Court has to examine as to whether accused has made out a case for further inquiry or not.

Muhammad Faiz alias Bhoora v. The State and another 2015 SCMR 655 ref.

Mian Taj Muhammad Keerio for Applicant.

Ali Ahmed Zaman Patoli for Applicant.

Khalid Saeed Soomro for the Complainant.

Shawak Rathore, D.P.G. for the State.

YLR 2022 KARACHI HIGH COURT SINDH 402 #

2022 Y L R 402

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Fahim Ahmed Siddiqui, JJ

RASOOL BUX, A.S.I. (Retd.) and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. D-389 of 2011, decided on 11th October, 2017.

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

----S. 27---Punishment for defective investigation and reward for successful investigation--- Scope--- Appellants assailed order of Trial Court whereby they were convicted under S.27 of Anti-Terrorism Act, 1997---Trial Court had proceeded against the police officials on the ground that they had initiated a false case against the accused persons---Section 27 of Anti-Terrorism Act, 1997 provided that the proceedings against the investigating officer and other concerned officers could only be initiated in case of their failure to pursue the case properly and in breach of their duties---Investigating officer had recommended the case for disposal under C-class (not true and not maliciously false) but the Special Public Prosecutor had directed him to submit the final report in the Anti-Terrorism Court---Charge against the appellants under S.27 of Anti-Terrorism Act, 1997 was held to be not established as such they were acquitted of the charge.

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

----S. 27---Punishment for defective investigation and reward for successful investigation---Charge to state offence---Failure of Trial Court to frame charge---Effect---Trial Court after issuance of show-cause notice to the police officials convicted them under S.27 of Anti-Terrorism Act, 1997---Held; Trial Court was not empowered to pronounce sentence without trial; proper charge should have been framed upon the delinquent persons so that they could defend themselves properly---Essential requirement of law was overlooked by the Trial Court, as such the sentence was not sustainable---Appellants were acquitted of the charge, in circumstances.

Ali Hassan Chandio for Appellants.

Shahzado Saleem Nahiyoon, D.P.G. for the State.

YLR 2022 KARACHI HIGH COURT SINDH 450 #

2022 Y L R 450

[Sindh (Hyderabad Bench)]

Before Adnan-ul-Karim Memon, J

ARSLAN AIJAZ---Petitioner

Versus

Mst. SANOBER and 2 others---Respondents

Constitutional Petition No. S-28 of 2019, decided on 5th October, 2020.

Family Courts Act (XXXV of 1964)---

----S. 17-A---"Maintenance"--- Connota-tion---Maintenance allowance---Father, responsibility of---Petitioner was father of minors who assailed maintenance allowance enhanced by Lower Appellate Court to be paid by him to his estranged wife and minor children---Validity---'Maintenance' means and includes food clothing and lodging which is responsibility of father to pay to his children and wife---Provision of S.17-A of Family Courts Act, 1964, specifically provides fixing of maintenance---Petitioner was responsible to take care of his minor children as well as his estranged wife---Mere statement of petitioner that he was not earning much did not discharge him from such responsibility---Object of determining maintenance was to ensure all probabilities that the minor was to be maintained by father in dignified manner with reasonable comfort and mother was not left to bear financial burden of minors---High Court declined to interfere in judgment and decree passed by Lower Appellate Court enhancing maintenance allowance, as the same was fair and just--- Constitutional petition was dismissed in circumstances.

Humayun Hassan v. Arslan Humayun and another PLD 2013 SC 557 rel.

Masood Rasool Babar for Petitioner.

Barrister Jawad Ahmed Qureshi for Respondents.

Allah Bachayo Soomro, Addl. A.G.

YLR 2022 KARACHI HIGH COURT SINDH 484 #

2022 Y L R 484

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

MUHAMMAD AAMIR and another---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 45 of 2004 and 3 of 2005, decided on 15th April, 2020.

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

----S. 154---First information report---Scope---First Information Report must be lodged with promptitude in order to give it reliability and credibility unless the delay is explained.

Khalid Javed v. State 2003 SCMR 1419 rel.

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

----Ss. 302, 324, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Delay of about nine days in lodging the FIR---Effect---Prosecution case was that the accused persons and two unknown culprits started firing at the passengers of the Passenger Van during the course of which the complainant and a passenger sustained bullet injuries, who were shifted to the hospital where injured passenger succumbed to the injuries---Incident had taken place on 23.06.2003 and yet the statement of deceased/complainant under S. 154, Cr.P.C. which formed the basis of the FIR, was recorded on 02.07.2003---Prosecution had tried to justify the delay based on the fact that the complainant was so seriously injured that it was not possible to record his statement before that time---Admittedly, the complainant was seriously injured and he was operated on and kept in the ICU---Medical Officer, who first received the injured at hospital, stated in his cross-examination that the injured was in a position to make a statement---Even Medico Legal Certificate of victim revealed that on admission to the hospital, he was conscious---Statement under S.154, Cr.P.C. of victim could have been recorded without delay---Even otherwise there was no evidence to suggest that the complainant was completely comatose and unable to make a statement before 02.07.03---To wait for the complainant to gain consciousness before recording his statement S. 154, Cr.P.C. was not essential---Prosecution did not adequately explain the delay in registering the FIR after a lapse of nine days especially as there were others available who could have readily and quite capably registered the FIR as they were well aware of the basic facts of the incident---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

Muhammad Younis v. Muhammad Khan 1999 YLR 2135 rel.

----S. 154---Scope---Basic concepts behind lodging FIR promptly was to ensure that there was no time for consultation and concoction between the complainant and the police and any other third party who might want to fix a person in a false case.

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

----Ss. 302, 324, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused persons and two unknown culprits started firing at the passengers of the Passenger Van during the course of which the complainant and a passenger sustained bullet injuries, who were shifted to the hospital where injured passenger succumbed to the injuries---Ocular account of the incident had been furnished by five eye-witnesses---All of said eye-witnesses belonged to the same political party as the deceased and were electioneering with them for a common cause yet none of them registered the FIR even when it became apparent that complainant might not be able to do so as he was seriously injured, including driver of the van when it was attacked---Failure of witnesses to lodge the FIR based on the particular facts and circumstances of that case did not appeal to logic, reason or common sense---Eye-witnesses including driver took the injured to hospital by stopping a vehicle---Question arose as to why they did not use the van to transport the injured to hospital which could have been driven especially as he was its driver and was uninjured and the injured was already sitting in the back of that van---Said eye-witnesses were not seen at any hospital after the incident---No document such as inquest report was signed in the name of eye-witnesses at either of the hospitals---No blood stained clothes were recovered from the witnesses to show that they took the injured to the hospital---Witnesses also did not wait to see whether their critically injured friend and complainant would live or die---Instead the witnesses just slipped away from the hospital without telling anyone about the incident for around 11 to 12 days which raised doubts that they ever transported their injured colleagues from the scene of the offence to the hospital and were actually present at the scene of the incident---Such conduct did not appeal to logic, reason or common sense---Appeal against conviction was allowed, in circumstances.

Shahbaz Khan Jakhrani v. Lal Beg Jakhrani 1984 SCMR 42; Zarif Khan v. The State PLD 1977 SC 612; The State v. Safdar and others 2002 MLD 1698; Mst. Zahida Bibi v. The State PLD 2006 SC 255; Rahim Bakhsh v. The State 1997 PCr.LJ 1450; Mureed v. The State PLD 2002 Kar. 530; Abdul Majid alias Majha v. The State 1976 PCr.LJ 545; The State v. Muhammad Yousuf PLD 1974 SC 46; Nagar Nazir v. The State 2007 SCMR 661; Muhammad Zubair v. The State 2007 SCMR 437; Yar Muhammad v. The State 1992 SCMR 96; Din Muhammad v. Abdul Rehman Khan 1992 SCMR 127; Bagh Ali v. The State PLD 1973 SC 321; Syed Saeed Muhammad Shah v. The State 1993 SCMR 550; Kazim Hussain Shah v. The State 1972 PCr.LJ 1012; Budho v. The State PLD 1965 (W.P.) Kar. 76; Mansur Ali v. The State 1970 PCr.LJ 287; Nooruddin v. Nazeer Ahmed 2011 PCr.LJ 1370; Bashir Ahmed v. Muhammad Siddique PLD 2009 SC 11 and Asfandyar Wali v. The State PLD 1978 Pesh. 38 ref.

Fayyaz Ahmed v. State 2017 SCMR 2026 rel.

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

----Ss. 302, 324, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S.161---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Delay in recording the statements of witnesses by police---Scope---Prosecution case was that the accused persons and two unknown culprits started firing at the passengers of the passenger van during the course of which the complainant and a passenger sustained bullet injuries, who were shifted to the hospital where injured passenger succumbed to the injuries---Record showed that none of the eye-witness's who knew that accused had instigated the murder of their friends and fellow party workers came forward and gave his statement under S.161, Cr.P.C. to the police in 10 to 12 days of the incident---Such silence had not been explained at all and under the circumstances was quite inexplicable---Delay in recording statement under S.161, Cr.P.C. of an eye-witness even after 48 hours was fatal to the evidence of that eye-witness unless a good explanation was given---No explanation was given for such delay---Inference was that the eye-witnesses were busy in cooking up a false case against the accused---All the eye-witnesses came forward to record their statements under S. 161, Cr.P.C. at around same time rather on different dates and that their statements were almost identical which had again given a strong indication that they were cooking up a false case against the accused while the FIR was being delayed---Appeal against conviction was allowed, in circumstances.

Zeeshan alias Shani v. State 2012 SCMR 428; Farman Ahmed v. Muhammed Inayat 2007 SCMR 1825 and Muhammed Asif v. State 2017 SCMR 486 rel.

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

----Ss. 302, 324, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Improvements in the statements of witnesses---Scope---Prosecution case was that the accused persons and two unknown culprits started firing at the passengers of the passenger van during the course of which the complainant and a passenger sustained bullet injuries, who were shifted to the hospital where injured passenger succumbed to the injuries---Significant improvements were made by all the eye-witnesses in their statements under S.161, Cr.P.C. and statements under S. 164, Cr.P.C. as shown by numerous confrontations through those statements during their cross-examinations which could be considered as dishonest improvements made in order to improve the prosecution case---Appeal against conviction was allowed, in circumstances.

Muhammed Saleem v. Shabbir Ahmed 2016 SCMR 1605 and Mst. Rukhsana Begum v. Sajjid 2017 SCMR 596 rel.

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

----Ss. 302, 324, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Interested witnesses---Reliance---Scope---Prosecution case was that the accused persons and two unknown culprits started firing at the passengers of the passenger van during the course of which the complainant and a passenger sustained bullet injuries, who were shifted to the hospital where injured passenger succumbed to the injuries---Admittedly, enmity, rivalry and ill will existed between the accused and the eye-witnesses who represented two different factions of a political party, who were electioneering for two different candidates in a hotly contested election on the day of the incident---Said eye-witnesses had every reason to falsely implicate the accused especially as their faction of the political party was currently a part of the Government---Said witnesses were all interested witnesses with an axe to grind against the accused---Appeal against conviction was allowed, in circumstances.

Imran Ashraf v. The State 2001 SCMR 424 rel.

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

----Ss. 302, 324, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art.22---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Test identification parade---Scope---Prosecution case was that the accused persons and two unknown culprits started firing at the passengers of the Passenger van during the course of which the complainant and a passenger sustained bullet injuries, who were shifted to the hospital where injured passenger succumbed to the injuries---None of the eye-witnesses knew co-accused before the incident---All the eye-witnesses only got a fleeting glance of the co-accused from a distance of about twenty feet which was not particularly close and none of them gave any hulia of him in their statements under S.161, Cr.P.C. and he was not placed before an identification parade---Driver of the Van, which was attacked, did not even see co-accused at the time of the incident and instead was told about his presence by the other eye-witnesses---Identification of co-accused by any of the eye-witnesses was found to be doubtful despite it being a day light incident, as it could not be ruled out that the eye-witnesses were not even present at the scene of the incident and had concocted a false case against co-accused---Appeal against conviction was allowed, in circumstances.

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

S. Mehmood Alam Rizvi and Abdul Rasheed Nizamani for Appellants (in Special Criminal Anti-Terrorism Appeal No. 45 of 2004).

Saleem Akhtar Buriro, Additional Prosecutor General for Respondent (in Special Criminal Anti-Terrorism Appeal No. 45 of 2004).

Saleem Akhtar Buriro, Additional Prosecutor General for Appellants (in Special Criminal Anti-Terrorism Appeal No. 3 of 2005).

S. Mehmood Alam Rizvi and Abdul Rasheed Nizamani for Respondents (in Special Criminal Anti-Terrorism Appeal No. 3 of 2005).

YLR 2022 KARACHI HIGH COURT SINDH 514 #

2022 Y L R 514

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi, J

MUNTAZIR MEHDI---Applicant

Versus

The STATION HOUSE OFFICER POLICE STATION T.M. KHAN CITY and 3 others---Respondents

Criminal Miscellaneous Application No.S-651 of 21019, decided on 21st September, 2020.

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

----Ss. 22-A & 22-B---Ex-officio Justice of Peace, powers of---Appreciation of evidence to be produced during trial---Examination of report of Medical Board---Scope---Applicant assailed order passed by Justice of Peace whereby he had directed the S.H.O. to record statement of applicant to the extent of only two accused persons---Nine persons were shown as proposed accused in the complaint and it was alleged that they were duly armed with pistols, hatchets and sticks however, it was surprising that as per medical certificate no firearm injury was received by the injured persons---Medical Board had reported that possibility of injuries, as a result of accident, could not be ruled out---Application was dismissed, in circumstances.

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

----S. 22-A---Ex-officio Justice of Peace, powers of---Scope---Section 22-(6),Cr.P.C. empowers the Justice of Peace to issue appropriate directions to the concerned police authorities on complaint for registration of a criminal case; however, these powers are not to be exercised in random manner without application of independent mind---Powers under S. 22-A(6), Cr.P.C. are vested with Justice of Peace for dispensation of justice, but at the same time, the Court would keep in mind that the said powers are never meant to be exercised in aid of injustice---Innocent persons would not be forced to go through the rigors of proceedings provided by Criminal Procedure Code and Pakistan Penal Code---Justice of Peace has to keep in mind such aspect that any direction issued unnecessarily or in routine manner shall cause humiliation, harassment and mental agony to the proposed accused and it would take years to conclude the criminal trial of the case arisen out of any FIR.

Muhammad Zahid Chohan, along with applicant for Applicant.

Manzoor Ahmed Panhwar for Private Respondents.

YLR 2022 KARACHI HIGH COURT SINDH 544 #

2022 Y L R 544

[Sindh]

Before Muhammad Iqbal Kalhoro and Shamsuddin Abbasi, JJ

NISAR AHMED MORAI and others---Appellants

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman---Respondent

Criminal Accountability Appeals Nos. 3 to 7, 12 and Constitutional Petition No.D-2483 of 2021, decided on 15th October, 2021.

(a) Criminal trial---

----Discrimination---Scope--- Challenging prosecution on the ground of discrimination cannot be complete valid defence to absolve an accused from criminal liability arising from his actions or inactions---Any person charged for an offence is answerable for his own acts or omissions and has to defend him in trial for the offence with which he has been charged.

(b) Criminal trial---

----False implication--- Proof--- Mere saying that accused has falsely been implicated in case without specifying any enmity, ill-will of personal grudge, is not sufficient to prove innocence particularly when prosecution witnesses were consistent and their evidence could not be shattered in cross-examination.

----S. 342---Defence plea---Principle---If accused has a defence plea the same should be put to witnesses in cross-examination and then to put forward while recording statement under S.342, Cr.P.C.

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

----Ss. 9(a)(vi) & 10---Misuse of authority---Appreciation of evidence---Sentence, quantum of---Principle of similarity and equality---Accused persons were alleged to have misused their authorities by making illegal appointments and awarding contracts---Trial Court convicted all accused persons and sentenced them variously---Validity---Prosecution had successfully proved charges of illegal appointments against one accused and awarding fake contracts to non-existent companies against all accused persons beyond shadow of any doubt---Accused persons failed to point out any material illegality or serious infirmity committed by Trial Court while passing judgment---Different sentences were awarded to different accused persons though offences were punishable under same provision of law prescribing same punishment for both without assigning valid reasons---Two probabilities exist one to enhance sentences of four years to seven years or reduce sentences of seven years to four years in respect of offences punishable under same provision of law---High Court under principle of similarity and equality and adopting proposition favouring accused persons, reduced sentence of seven years to four years imprisonment---Appeal was dismissed accordingly.

Khawaja Shamsul Islam along with Amjad Ali Shah for Appellants (in Criminal Accountability Appeal No. 03 of 2021).

Obaid-ur-Rehman for Appellants (in Criminal Accountability Appeal No.04 of 2021).

Obaid-ur-Rehman for Appellants (in Criminal Accountability Appeal No.05 of 2021).

Muhammad Rehman Ghous and Raghib Ibrahim for Respondents (in Criminal Accountability Appeal No.05 of 2021).

Ms. Sadia Khatoon for Respondents (in Criminal Accountability Appeal No.06 of 2021).

Muhammad Jamil for Respondents (in Criminal Accountability Appeal No.07 of 2021).

Riaz Alam Khan, Special Prosecutor NAB.

Irfan Ahmed Memon, D.A.G.

YLR 2022 KARACHI HIGH COURT SINDH 572 #

2022 Y L R 572

[Sindh]

Before Muhammad Faisal Kamal Alam, J

SHARIF AHMED QURESHI---Plaintiff

Versus

Wing Cdr. (R) MAZHAR MIRZA and 7 others---Defendants

Suit No. 1713 of 2012, decided on 3rd May, 2019.\

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

----Art. 18---Civil Procedure Code (V of 1908), O.XIV, R.1---Admitted fact---Effect---Fact admitted in written statement does not need further proof.

Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21 rel.

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

----Ss. 12, 42 & 54---General Clauses Act (X of 1897), S. 24-A---Suit for specific performance of agreement to sell, declaration and injunction---Administration of justice---Transfer of title---No Objection Certificate from authorities---Plaintiff entered into agreement with defendant regarding purchase of suit property---Authorities were not issuing "No Objection Certificate" whereby sale deed could not be registered---Validity---Officials could not deprive plaintiff of his ownership rights and interest vis-à-vis suit property, when entire transaction was not disputed rather admitted by defendant as well as the authorities---Defendants also admitted that plaintiff was residing in suit property---If officials had issued "No Objection Certificate" in respect of cancelled sale transaction of suit property, earlier, then authorities could not withhold issuance of "No Objection Certificate" on any extraneous ground---Authorities did not even contest claim of plaintiff--- Government functionaries under S.24-A of General Clauses Act, 1897, had to act and exercise discretion in a reasonable, fair, just manner and for advancement of the purpose of enactment---Suit was decreed accordingly.

Ms. Shamim Akhter for Plaintiff.

Muhammad Islam Leghari for Defendants Nos. 1 and 2.

Aminullah Siddiqui, Assistant Attorney General along with Hassan, UDC and Muhammad Shoaib, LDC for Defendants Nos. 3, 4 and 7.

Ms. Mehmooda Suleman, State Counsel along with Wali Muhammad Shaikh, Sub-Registrar, Shah Faisal Town, Karachi for Defendants 6 and 8.

YLR 2022 KARACHI HIGH COURT SINDH 602 #

2022 Y L R 602

[Sindh]

Before Aftab Ahmed Gorar, J

HAMID ALI TANOLI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 1319 of 2021, decided on 29th September, 2021.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention--- Pre-arrest bail, refusal of--- Absconsion of accused---Issuance of threats to deceased during lifetime---Scope---Accused sought pre-arrest bail in an FIR lodged under Ss. 302, 109 & 34, P.P.C.---Accused was booked in heinous crime of committing murder of his wife---Sufficient material was available on record connecting the accused with the alleged crime---Record further showed that after the incident the accused had left the city---As regards issuing threats to his wife, perusal of the police papers showed that during her lifetime, deceased had moved an application in the police station stating that in case of any loss to her life, the accused and her relatives would be responsible---Deceased had also filed an application under S. 491, Cr.P.C. for recovery of her minor children before the Additional Sessions Judge, which showed that there were disputes between the accused and his wife---Name of accused appeared in the FIR and the accused had not uttered a single word as to why he was falsely involved in the case---Investigating Officer had stated that the accused had not joined the investigation after obtaining pre-arrest bail---Accused had remained absconder till the date his application for pre-arrest bail was granted---Application for grant of pre-arrest bail was dismissed, in circumstances.

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

----S.497---Bail---Tentative assessment---Scope---Court while deciding bail application has to observe the record tentatively and deeper appreciation of evidence is not required and it will not be fair to go into discussion about the merits of the case.

Saleh Muhammad v. The State PLD 1986 SC 211 and The State v. Zubair and 4 others PLD 1986 SC 173 ref.

Tahirur Rehman Tanoli for Applicant along with Applicant in person.

Siraj Ali Khan Chandio, Addl. P.G. Sindh.

Raja Naeem Akhtar for the Complainant.

YLR 2022 KARACHI HIGH COURT SINDH 644 #

2022 Y L R 644

[Sindh (Sukkur Bench)]

Before Muhammad Junaid Ghaffar and Zulfiqar Ali Sangi, JJ

ASHIQUE ALI MARI---Petitioner

Versus

EXECUTIVE DISTRICT OFFICER (REVENUE), KHAIRPUR and 3 others---Respondents

Constitutional Petition No. D-2234 of 2010, decided on 8th September, 2021.

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

----Ss. 42 & 164---Constitution of Pakistan, Art. 199--- Constitutional petition---Audi alteram partem, principle of---Change in revenue record---Petitioner was aggrieved of cancellation of entries in his name made by revenue authorities in exercise of revisional jurisdiction under S.164 of Sindh Land Revenue Act, 1967, without issuing any notice to petitioner---Validity---Judgment and decree of Civil Court in favour of petitioner was on record and such fact was in active knowledge of the Authority, yet petitioner was not afforded opportunity of hearing---Record was made available with the authority but he ignored the same and passed the order unilaterally, which was violation of principle of 'audi alteram partem'---Revenue authority while ignoring judgment and decree passed by Civil Court had traveled beyond its jurisdiction, as he could not have passed any order to decide controversy which had already been decided by Civil Court and marinated by Appellate Court---High Court set aside order passed by revenue authority---Constitutional petition was allowed, in circumstances.

Trading Corporation of Pakistan v. Dewan Sugar Mills Ltd. PLD 2018 SC 828; Abdul Majeed and 5 others v. Province of Punjab and others 2010 CLC 146 and Government of Sindh through Secretary and D.G., Excise and Taxation and another v. Muhammad Shafi and others PLD 2015 SC 380 ref.

(b) Constitution of Pakistan---

----Art. 10-A---Due process---Scope---Any order passed without giving notice is against the principles of natural justice and that of term 'due process'---Such order is void ab initio.

Ishtiaq Ahmed v. Hon'ble Competent Authority 2016 SCMR 943 rel.

Syed Jaffar Ali Shah for Petitioner.

Ahmed Ali Shahani, A.A.G. for Respondents Nos. 1 and 2.

Zakir Ali Rajpar for Respondent No.3.

YLR 2022 KARACHI HIGH COURT SINDH 665 #

2022 Y L R 665

[Sindh]

Before Aftab Ahmed Gorar, J

Mst. AQSA ZEESHAN---Petitioner

Versus

GOVERNMENT OF SINDH through Chief Secretary and 5 others---Respondents

Constitutional Petition No. S-491 of 2021, decided on 13th October, 2021.

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

----S. 25---Custody of minors---Divorce between parties---Petitioner (mother) agitated that the minors were forcibly taken away by the respondent (father) and was threatening the petitioner---Respondent filed counter affidavit wherein he denied the said allegations contending that at the time of divorce petitioner consented to handover the custody of the first minor/child whereas she was pregnant and consented the custody of second minor/child after giving birth---Petitioner, instead of approaching the Curt of competent jurisdiction, directly approached High Court under constitutional jurisdiction---Validity--- Petitioner had neither produced any document to show the date of divorce nor denied the divorce document produced by respondent---Said divorce document/stamp paper was annexed with counter affidavit by the respondent---Petitioner neither denied such document nor rebutted the same, hence the same was considered to be true---Petitioner claimed custody after an unjustifiable delay of one year---Minor aged 8 months---Mother could not keep quiet when her new born was forcibly taken---Respondent presented Iqrarnama showing that petitioner herself consented to handover custody of minor---Such Iqrarnama had not been denied/rebutted, hence considered to be true---Names of minors had been incorrectly mentioned in petition which showed petitioner's lack of interest in minors---Petitioner alleged in the petition to have filed application before police but record showed the same was filed after more than 04 months of filing petition which seemed to be afterthought--- Present Constitutional petition was not maintainable---Petitioner had two remedies: firstly, to approach the concerned police station against alleged threats or avail consequential remedy under S. 22A of Criminal Procedure Code, 1898; secondly, to claim custody of minors under Guardians and Wards Act, 1890---Constitutional petition was dismissed accordingly.

Nazha Ghazali v. The State and another 2001 SCMR 1782 rel.

Zia-ul-Haq for Petitioner.

Ms. Samreen Abro for Respondent No.1.

Pervaiz Ahmed Mastoi, A.A.G. for Respondents Nos. 2 to 6.

YLR 2022 KARACHI HIGH COURT SINDH 679 #

2022 Y L R 679

[Sindh (Larkana Bench)]

Before Zafar Ahmed Rajput and Adnan-ul-Karim Memon, JJ

ARSALLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-18 of 2021, decided on 3rd August, 2021.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 353, 440, 148 & 149---Explosive Substances Act (VI of 1908), Ss. 3 & 4---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, mischief committed after preparation made for causing death or hurt, rioting armed with deadly weapon, unlawful assembly, recovery of explosive substance and firearms, act of terrorism---Appreciation of evidence--- Benefit of doubt---Prosecution case was that during the encounter which took place between the police party and accused persons, three Police Constables were gunned down by the accused persons and they also caused certain injuries to six Police Officials---Record showed that twenty six accused of the present occurrence preferred appeal against their convictions, which was allowed by the Court---Present accused had been convicted by the Trial Court on the same set of facts and evidence, which High Court had not considered sufficient to warrant their conviction---No special features were found which distinguished accused's case/role from the said accused persons justifying recording conviction and sentence to the present accused---Present accused was also entitled to the same benefit of doubt earlier extended in favour of accused of the same case---Appeal against conviction was allowed, in circumstances.

Abdul Rehman A. Bhutto and Saeed Ahmed Bajarani for Appellant.

Aitbar Ali Bhullo, Deputy Prosecutor General, Sindh for the State.

YLR 2022 KARACHI HIGH COURT SINDH 746 #

2022 Y L R 746

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi, J

JUMO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-101 of 2012, decided on 15th March, 2021.

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

----Ss. 302(b), 337-H(2), 148 & 149---Qatl-i-amd, rash and negligent act, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Delay of about two hours and forty five minutes in lodging the FIR---Effect---Accused was charged that he along with co-accused with common object duly armed with weapons by making firing with their weapons killed nephew of the complainant and also made aerial firing---Old landed dispute between the parties was the motive behind the occurrence---Record showed that the FIR was registered on the same day within three hours---Distance of police station from the place of vardat was about 10/11 kilometres---Evidence of Medical Officer, revealed that he received the dead body at 2.00 p.m., started the post mortem at 2.30 a.m. and finished it at 03.30 p.m.---Investigating Officer also deposed that he inspected the dead body at the hospital though as per complainant at the time of FIR the dead body was at the place of vardat---Delayed FIR and reaching the dead body at the hospital and conducting the post-mortem with delay created very serious doubts in the prosecution case which also suggested that the FIR was not registered at the time which was shown in the FIR and the incident also did not take place as narrated in the FIR---Appeal against conviction was allowed, in circumstances.

Nazeer Ahmad v. Gehne Khan and others 2011 SCMR 1473 rel.

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

----Ss. 302(b), 337-H(2), 148 & 149---Qatl-i-amd, rash and negligent act, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Ocular account and medical evidence---Contradictions---Accused was charged that he along with co-accused with common object duly armed with weapons by making firing with their weapons killed nephew of the complainant and also made aerial firing---Ocular account of the incident had been furnished by complainant and another witness being eye-witnesses---Evidence of the said witnesses showed the accused fired upon the deceased at his back---Evidence of said witnesses when confronted, no firearm injury was found at the back of the deceased---Evidence of the Medical Officer established that there was no injury at the back side of the deceased for which the accused was implicated by the prosecution and was convicted by the Trial Court---Evidence of mashir was also scanned in that respect but it could not find a single word in his deposition about the injury at the back side of the deceased as alleged against the accused by the complainant and other witness---Said circumstances established that the ocular evidence was not in line with the medical evidence and made the entire prosecution case as doubtful---Appeal against conviction was allowed, in circumstances.

Ghulam Hyder through Superintendent, Central Prison v. The State 2020 YLR 2411 rel.

----Ss. 302(b), 337-H(2), 148 & 149---Qatl-i-amd, rash and negligent act, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of weapon of offence from the accused---Reliance---Scope---Accused was charged that he along with his co-accused with common object duly armed with weapons by making firing with their weapons killed nephew of the complainant and also made aerial firing---Alleged recovery of gun from the accused was also not proved by the prosecution, as the prosecution had not produced the witnesses of the recovery---Said gun was not produced before the Trial Court and was not shown to any prosecution witnesses---Gun was also not shown to the accused at the time of recording his statement under S.342, Cr.P.C., hence the recovery of gun could not be used against the accused for his conviction---Appeal against conviction was allowed, in circumstances.

Kashif Ali and another v. The State 2019 YLR 1573 rel.

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

----Ss. 302(b), 337-H(2), 148 & 149---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, rash and negligent act, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Failure to put certain questions to accused---Effect---Accused was charged that he along with co-accused with common object duly armed with weapons by making firing with their weapons killed nephew of the complainant and also made aerial firing---Record showed that the evidence in respect of the recovery of empty cartridges, bloodstained earth from the place of vardat, recovery of gun from the accused and the Forensic Science Laboratory Report so also Chemical Examiner's report were not put to the accused while recording his statement under S.342, Cr.P.C. enabling accused to explain the circumstances, thus, the same could not be used against him---Appeal against conviction was allowed, in circumstances.

Imtiaz alias Taj v. The State 2018 SCMR 344; Qadan and others v. The State 2017 SCMR 148; Mst: Anwar Begum v. Akhtar Hussain alias Kaka and 2 others 2017 SCMR 1710 and Muhammad Shah v. The State 2010 SCMR 1009 rel.

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

----Ss. 302(b), 337-H(2), 148 & 149---Qatl-i-amd, rash and negligent act, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Delay in sending the weapon of offence and crime empties for analysis---Scope---Accused was charged that he along with co-accused with common object duly armed with weapons by making firing with their weapons killed nephew of the complainant and also made aerial firing---Empties were recovered from the place of vardat on 30.11.2007---Accused was arrested on 09.12.2007 and the recovery of gun was shown on15-12-2007---Forensic Science Laboratory Report showed that the gun and the empties were received at laboratory after about three years---Prosecution had not produced any evidence about its safe custody---In these circumstances, the report of Forensic Science Laboratory could not be relied and was legally inconsequential---Appeal against conviction was allowed, in circumstances. was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 rel.

(f) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance creating reasonable doubt in the mind of a prudent man comes in the evidence of the prosecution, its benefit must go to accused not as a matter of grace or concession but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Athar Abbas Solangi for Appellant.

Asif Ali Abdul Razaq Soomro for the Complainant.

Muhammad Noonari, Deputy Prosecutor General for the State.

YLR 2022 KARACHI HIGH COURT SINDH 760 #

2022 Y L R 760

[Sindh]

Before Mohammad Karim Khan Agha and Mrs. Kausar Sultana Hussain, JJ

MUHAMMAD SHAKIR and another---Appellants

Versus

The STATE---Respondent

Criminal Anti-Terrorism Jail Appeals Nos. 170 and 176 of 2020, decided on 28th October, 2021.

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

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

----Ss. 385, 386 & 34---Sindh Arms Act (V of 2013), S. 23(i)A---Anti-Terrorism Act (XXVII of 1997), S. 7---Putting person in fear of injury in order to commit extortion, extortion by putting a person in fear of death or grievous hurt, common intention, Possession of unlicensed weapon, act of terrorism---Appreciation of evidence---Sentence, reduction in---Presence of witnesses at the spot not doubted---Accused were charged for demanding Bhatta from the complainant---Complainant and other witness were independent witnesses who had no enmity with the accused and no reason to implicate them in a false case and gave evidence that they were present when the extortion money was handed over to the accused and when the police arrested the accused on the spot from whom the extortion money was recovered along with unlicensed pistols from each of the accused and mobile phone and SIM---Said witnesses acted as mashirs for the memo of arrest and recovery---Said witnesses were not chance witnesses and were not dented despite a lengthy cross-examination---Evidence of said witnesses was found to be reliable, trust worthy and confidence inspiring---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt, however, due to mitigating factors, the term of imprisonment of each accused was reduced from five years to three years---Appeal was dismissed with said modification in sentence.

Muhammad Yaqoob v. The State 2020 SCMR 853 rel.

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

----Ss. 385, 386 & 34---Sindh Arms Act (V of 2013), S. 23(i)A---Anti-Terrorism Act (XXVII of 1997), S. 7---Putting person in fear of injury in order to commit extortion, extortion by putting a person in fear of death or grievous hurt, common intention, Possession of unlicensed weapon, act of terrorism---Appreciation of evidence---Sentence, reduction in---Police witnesses---Reliance---Scope---Accused were charged for demanding Bhatta from the complainant---Record showed that police witnesses were present at the time of the arrest and recovery---No enmity had been suggested against them and they had no reason to involve the accused persons in a false case by foisting either the unlicensed pistols or extortioned money on them---In the absence of any ill will or enmity the evidence of the police witnesses could be relied upon---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt, however, due to mitigating factors, reduced the terms of imprisonment for each accused from five years to three years---Appeal was dismissed with said modification in sentence.

Mushtaq Ahmed v. The State 2020 SCMR 474 rel.

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

----Ss. 385, 386 & 34---Sindh Arms Act (V of 2013), S. 23(i)A---Anti-Terrorism Act (XXVII of 1997), S. 7---Putting person in fear of injury in order to commit extortion, extortion by putting a person in fear of death or grievous hurt, common intention, Possession of unlicensed weapon, act of terrorism---Appreciation of evidence---Sentence, reduction in---Recovery of SIM---Scope---Accused were charged for demanding Bhatta from the complainant---SIM belonging to one of the recovered mobile phones belonged to the nephew of one of the accused which created a direct link between the accused and the SIM which could not possibly have been foisted on him especially as the nephew of accused was living in another Province---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt, however, due to mitigating factors, reduced the terms of imprisonment for each accused from five years to three years---Appeal was dismissed with said modification in sentence.

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

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

----Ss. 385, 386 & 34---Sindh Arms Act (V of 2013), S. 23(i)A---Anti-Terrorism Act (XXVII of 1997), S. 7---Putting person in fear of injury in order to commit extortion, extortion by putting a person in fear of death or grievous hurt, common intention, Possession of unlicensed weapon, act of terrorism---Appreciation of evidence---Sentence, reduction in---Contradictions in the evidence of witnesses---Scope---Accused were charged for demanding Bhatta from the complainant---All the witnesses were consistent in their evidence---Even if there were some contradictions in their evidence, same 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---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt, however, due to mitigating factors, reduced the terms of imprisonment for each accused from five years to three years---Appeal was dismissed with said modification in sentence.

Zakir Khan v. State 1995 SCMR 1793 and Khadim Hussain v. The State PLD 2010 SC 669 rel.

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

----Ss. 385, 386 & 34---Sindh Arms Act (V of 2013), S. 23(i)A---Anti-Terrorism Act (XXVII of 1997), S. 7---Putting person in fear of injury in order to commit extortion, extortion by putting a person in fear of death or grievous hurt, common intention, possession of unlicensed weapon, act of terrorism---Appreciation of evidence---Sentence, reduction in---Applicability of terrorism---Accused were charged for demanding Bhatta from the complainant---Offence did not fall within the purview of the Anti-Terrorism Act, 1997, as there was no design or intent to create terror---No member of the public was terrorized as the incident took place in the early hours of the morning when no member of the public was available at the place of the incident and as such the accused were not convicted under Anti-Terrorism Act, 1997---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt, however, due to mitigating factors, reduced the terms of imprisonment for each accused from five years to three years---Appeal was dismissed with said modification in sentence.

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

Habib-ur-Rehman for Appellants (in Criminal A.T.J.A. No.170 of 2020).

Sanaullah Brohi for the Complainant (in Criminal A.T.J.A. No.170 of 2020).

Muhammad Iqbal Awan, Additional Prosecutor General for the State (in Criminal A.T.J.A. No.170 of 2020).

Moula Bux Bhutto for Appellant (in Criminal A.T.J.A. No. 176 of 2020).

Sanaullah Brohi for the Complainant (in Criminal A.T.J.A. No.176 of 2020).

Muhammad Iqbal Awan, Additional Prosecutor General (in Criminal A.T.J.A. No.176 of 2020).

YLR 2022 KARACHI HIGH COURT SINDH 828 #

2022 Y L R 828

[Sindh]

Before Abdul Maalik Gaddi and Rashida Asad, JJ

NIZAM-UD-DIN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 442 of 2020, decided on 16th April, 2020.

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

----S. 497---Penal Code (XLV of 1860), Ss. 385, 386 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Putting or attempting to put in fear of injury in order to commit extortion, extortion by putting a person in fear of death or grievous hurt, common intention, act of terrorism---Bail grant of---Further inquiry---Allegation against the accused-applicant was that he along with his other companions approached to the complainant at his factory and demanded bhatta/extortion money by force and on his refusal, they issued him murderous threats---Record showed that FIR was lodged by the complainant, after the delay of about fifty four days for which no satisfactory explanation had been furnished---Nothing on record to show that just after the incident, complainant had made any complaint with regard to alleged incident to higher authorities---Accused-applicant had not received any bhatha/extortion money from the complainant---Said facts of the case required further inquiry as to whether the incident had taken place in a manner as stated in FIR or otherwise---Record transpired that accused-applicant was arrested on 05.04.2019 in the present case when he was already under arrest in another case and nothing was recovered from his possession---Co-accused persons had already been granted bail by the Trial Court, although the allegations against them were almost on same facts therefore, following the rule of consistency the accused-applicant was also entitled for same relief---Allegedly, accused-applicant was involved in thirty two other criminal cases, but prosecution had failed to establish that he was ever convicted in any case registered against him---Bail could not be refused merely on the ground that certain other criminal cases had been registered against accused-applicant--- Accused - applicant had made out a case for further inquiry into his guilt within the meaning of S.497(2), Cr.P.C.---Bail application was allowed, in circumstances.

Jafar alias Jafri v. The State 2012 SCMR 606 rel.

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

----S.497---Bail---Tentative assessments---Scope---Observations made in the bail order were tentative in nature and the same would have no bearing on the outcome of the trial of the case.

Muhammad Hanif Samma for Applicant.

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

None present for the Complainant.

YLR 2022 KARACHI HIGH COURT SINDH 846 #

2022 Y L R 846

[Sindh]

Before Abdul Maalik Gaddi and Rashida Asad, JJ

MAHENDAR KUMAR and 2 others---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos. 542 and 574 of 2020, decided on 5th May, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 409, 468, 471, 477-A & 109---Anti-Money Laundering Act (VII of 2010), Ss. 3 & 4---Criminal breach of trust by public servant, forgery for purpose of cheating, using as genuine a forged document, falsification of accounts, abetment, money laundering---Bail, refusal of---Allegations against the accused persons were that they were indulged in operation of benami accounts, money laundering and parallel banking practices---Record, revealed that accused had been specifically nominated in FIR with specific role except co-accused---Complainant and Investigating Officer had no ill will/mala fide with the accused to falsely implicate them in the case---Delay in lodging of FIR had been properly explained---Investigating Officer of the case arrested seven accused persons and from their possession, mobile phones, laptops, cheque books, bank accounts deposit slips, remittance applications forms and other documents were recovered in presence of mashirs, who had no inimical terms with the accused, which prima facie, showed their involvement in the case, which appeared to be serious and heinous in nature and also sabotaged the soft image of the country---None could claim bail as of right in non-bailable offences even though the same did not fall under the prohibitorty clause of S.497, Cr.P.C.---Sufficient material was on record against the accused to connect them in the case which appeared to be serious and heinous in nature---Applications for bail being bereft of merits were dismissed, in circumstances.

Muhammad Tanveer v. The State and another PLD 2017 SC 733; Saeed Ahmed v. The State 1996 SCMR 1132; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Shamraiz Khan v. The State 2000 SCMR 157; Inamul Haque v. The State 2000 YLR 289 and Wasi Ahmed v. The State 2010 YLR 2299 ref.

Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442. Imtiaz Ahmed and another v. The State PLD 1997 SC 545 rel.

Aamir Mansoob Qureshi and Rehman Ghous for Applicants (in both Applications).

Muhammad Ahmed, Assistant Attorney General along with I.O/Inspector Fareed Khan, FIA, CBC, Karachi for Respondent.

YLR 2022 KARACHI HIGH COURT SINDH 913 #

2022 Y L R 913

[Sindh (Hyderabad Bench)]

Before Adnan-ul-Karim Memon, J

Malik FARAZ AHMED and 5 others---Petitioners

Versus

Agha KHURSHEED AHMED and 5 others---Respondents

Constitution Petition No. S-172 of 2020, decided on 9th October, 2020.

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

----S. 15---Ejectment of tenant---Bona fide personal need of landlord---Concurrent findings of facts by two Courts below---Petitioners/tenants were aggrieved of eviction order passed by two Courts below against them---Validity---Petitioners/tenants in their statements admitted that respondent/landlord after coming from abroad sought subject premises for personal need and the same was denied---Petitioners/tenants admitted execution of rent agreement with respondent/landlord---Rent Controller after recording evidence and hearing parties had given a decision against petitioners/tenants--- Lower Appellate Court concurred with decision of Rent Controller and dilated upon issues in elaborate manner on the same premise---Judgments passed by two Courts below showed that matter between the parties was decided on merits based on evidence before them---High Court declined to interfere in eviction orders as there was no material illegality, infirmity or irregularity in judgments of Courts below---Constitutional petition was dismissed, in circumstances.

H.M. Saya and Co, Karachi v. Wazir Ali Industries Ltd Karachi and another PLD 1969 SC 65; Mrs. Zehra Begum v. Mesrrs Pakistan Burma Shell Ltd. 1992 SCMR 943; Mirza Fazal Ghani v. Bahadur Khan 2017 YLR 1312; Khalid v. 7th Additional District Judge Karachi and others 2015 CLC 570; Dr. Ahmed Ali v. Mst. Shahana Younis and others 2012 MLD 1190; Chirag u Din v. Muhammad Shareef and others 2018 YLR 1768; Mehdi Nasir Rizvi v. Muhammad Usman Siddiqui 2000 SCMR 1613; Muhammad Nasir Khan and another v. Muhammad Attique and others 2017 CLC Note 112; Ashique Ali and Brothers v. Aslam Parvaiz and others 2017 YLR Note 247; Mst. Naseem v. Nabi Bux 2000 MLD 175; Pakistan National Shipping Corporation v. Messrs General Service Corporation 1992 SCMR 871 and Waqar Zafar Bakhtawri and others v. Haji Mazhar Hussain Shah and others (Civil Appeals Nos. 300, 346, 812 and 851 to 854 of 2017). ref.

Muhammad Hayat v. Muhammad Miskeen through Allors and others 2018 SCMR 1441 rel.

Suresh Kumar for Petitioners.

Muhammad Arshad S. Pathan, for Respondents.

Allah Bachayo Soomro, Addl. A.G.

YLR 2022 KARACHI HIGH COURT SINDH 924 #

2022 Y L R 924

[Sindh]

Before Muhammad Iqbal Kalhoro and Shamsuddin Abbasi, JJ

MUHAMMAD YOUNIS alias BONA and another---Petitioners

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 21 to 24 of 2020, decided on 1st October, 2020.

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

----Ss. 324, 353, 186, 147, 148 & 149---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, obstructing public servant in discharge of public functions, rioting, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Contradictions in the statements of witnesses---Scope---Prosecution case was that the police party signalled the accused party, but they started firing on police with intention to kill and also deterred them from discharging their lawful duties---Police, in retaliation, made firing in self-defence, due to which one of the culprits sustained bullet injury and was arrested---Record showed that the complainant had stated that the accused were at a distance of 20 meters from police party when encounter took place and it continued for about 10/15 minutes, however, mashir had stated that distance between accused and the police party during encounter was about 17/18 paces and it continued for two minutes---Complainant had stated that he prepared memo of arrest and recovery by placing the paper on the bonnet of police mobile in the torch light of his cell phone and it took about 10 minutes in preparing the same---According to mashir, the memo of arrest and recovery was prepared while placing the paper on the bonnet of police mobile in the street light and it took about 20 minutes in preparing the same---Complainant had stated that he called ambulance from his cell phone and it arrived within 15 minutes and then he shifted the injured accused to Hospital through Police Constable but mashir had not deposed so---Complainant had further admitted in cross-examination that he had not associated driver of ambulance to act as mashir---Said position had demolished the case as set up in the FIR and also shattered the entire fabric of the testimony of witnesses as unsafe to rely upon---Circumstances established that the prosecution had failed to discharge its onus of proving the guilt of the accused beyond shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

Zeeshan alias Shani v. The State 2012 SCMR 428; Abdul Ghani and others v. The State and others 2019 SCMR 608; Samad Ali v. The State 2019 MLD 670 and Abrar Hussain v The State and another 2017 PCr.LJ 14 ref.

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

Zeeshan alias Shani v. The State 2012 SCMR 428 rel.

----Ss. 324, 353, 186, 147, 148 & 149---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, obstructing public servant in discharge of public functions, rioting, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that the police party signalled the accused party, but they started firing on police with intention to kill and also deterred them from discharging their lawful duties, in retaliation, police made firing in self-defence, due to which one of the culprits sustained bullet injury and was arrested---Record showed that there was exchange of fires from both the sides, but none from the Police personnel, who were four in number, sustained any injury/scratch in the encounter ensuing after alleged indiscriminate firing by five accused persons ridding on three motorcycles---However, it was, indeed, something beyond comprehension that only one accused, out of five, sustained injury during encounter, but the complainant and other members of the police party escaped unhurt and did not receive a single scratch despite the fact that they were in the close proximity of five accused persons i.e. from 20 meters and the encounter remained continued for about 10/15 minutes as deposed by the complainant---Even the Medical Officer did not say as to whether the accused sustained injury from front or back side---Besides, the FIR showed that five persons riding on three motorcycles opened firing on the police party, the moment they were signalled to stop, without any indication in the FIR that either they first got down from the motorcycles and then started firing at the police party or made fires on the police straight from their motorcycles---Bare perusal of the FIR revealed simultaneous firing by all the five accused named in the FIR and in reply thereof the police personnel, who were four in number, returned the fires in self-defence whereupon accused became injured, but none of the witnesses had deposed that with which firing he sustained injury---Story set-forth in the FIR, thus, seemed to be self-made and unsafe to rely upon---Circumstances established that the prosecution had failed to discharge its onus of proving the guilt of the accused beyond shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

Abid and another v. The State 2019 YLR 613 rel.

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

----Ss. 324, 353, 186, 147, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---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, obstructing public servant in discharge of public functions, rioting, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Non-association of private witness---Scope---Prosecution case was that the police party signalled the accused party, but they started firing on police with intention to kill and also deterred them from discharging their lawful duties, in retaliation, police made firing in self-defence, due to which one of the culprits sustained bullet injury and was arrested---Incident alleged to have taken place at main road and firing was exchanged from both sides, therefore, the possibility of presence of private persons at road could not be ruled out---Record showed that recovery was allegedly made from a road in a populated area, but police did not make any effort to persuade any person from the locality or for that matter the public was asked to act as witness of arrest and recovery proceedings---Bare perusal of record revealed that the place of occurrence was located in a populated area on a busy road and it was admitted by complainant in his cross-examination that he did not call any private witness to attest the arrest and recovery proceedings---Manner of recovery as narrated through evidence recorded by the Police Officials had lost its sanctity---Some plausible explanation had to be on record that actually attempts were made to associate any independent witness from the locality, when otherwise under the circumstances of the case the accused had pleaded their false implication and even denied their arrest from the place of occurrence or at the time as shown by the prosecution---Association of an independent witness was necessary to attest the arrest and recovery proceedings, but admittedly no such efforts were made either by the complainant or by the Investigating Officer while conducting site inspection, which had caused serious dent to the prosecution case--- Circumstances established that the prosecution had failed to discharge its onus of proving the guilt of the accused beyond shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 324, 353, 186, 147, 148 & 149---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, obstructing public servant in discharge of public functions, rioting, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Delay of seven days in sending the weapon and crime empties for analysis---Scope---Prosecution case was that the police party signalled the accused party, but they started firing on police with intention to kill and also deterred them from discharging their lawful duties, in retaliation, police made firing in self-defence, due to which one of the culprits sustained bullet injury and was arrested---Record showed that the weapons and empties alleged to have been recovered had been received in the office of Forensic Division after seven days of its recovery---Delay in dispatching the case property to the office of Forensic Division had not been explained---Neither the name of Police Official, who had taken the case property to the office of Forensic Division, had been mentioned nor examined by the prosecution at trial in order to prove safe transit to the expert---Report of expert, issued by the office of Forensic Division, described three empties of 30 bore pistol whereas the case of the prosecution was that four empties of 30 bore pistol were secured from the scene of offence---Report also reflected that the weapons and empties were received in the laboratory after seven days of its recovery---Prosecution thus had failed to substantiate the point of safe custody of case property and its safe transit to the expert through cogent and reliable evidence---Recovery on the face of it seemed to be doubtful---Another feature which had caused serious dent to the prosecution case was that the prosecution neither produced the weapons allegedly recovered from the possession of accused and the empties alleged to have been secured from the place of incident at trial nor exhibited the same in the evidence as articles---Nothing had been brought on record with regard to non-production of case property at trial except that the same had been lost---Entire record was silent with regard to cause of loss of the case property---Even the same had not been shown to the accused at the time of recording their statements under S.342, Cr.P.C.---Circumstances established that the prosecution had failed to discharge its onus of proving the guilt of the accused beyond shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

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

----S. 342---Examination of accused---Scope---Conviction could only be based upon the evidence which was put to the accused in his statement under S.342, Cr.P.C., for obtaining his explanation---If such evidence was not put to the accused in such statement then it cannot be used against him.

(g) Criminal trial---

----Recovery of firearm and empties---Scope---Recovery of firearm and empties were always considered to be corroborative piece of evidence---Such kind of evidence by itself was not sufficient to bring home the charge against the accused especially when the other material put-forward by the prosecution in respect of guilt of the accused had been disbelieved.

Imran Ashraf and 7 others v. The State 2001 SCMR 424 and Dr. Israr-ul-Haq v. Muhammad Fayyaz and another 2007 SCMR 1427 rel.

(h) Criminal trial---

----Heinousness of offence---Effect---Scope---Heinous nature of the offence was not sufficient to convict the accused as the accused continued with presumption of innocence until found guilty at the end of the trial.

(i) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance creating doubt in the prosecution case its benefit would go to accused not as a matter of grace or concession but as a matter of right.

Muhammad Daud Narejo for Appellant (in Spl. Crl. Anti-Terrorism Appeals Nos. 21 and 22 of 2020).

Mehmood A. Qureshi for Appellant (in Spl. Crl. Anti-Terrorism Appeals Nos. 23 and 24 of 2020).

Ali Haider Saleem, D.P.G. for the State.

YLR 2022 KARACHI HIGH COURT SINDH 963 #

2022 Y L R 963

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto, J

IMAMUDDIN---Appellant/accused

Versus

The STATE---Respondent

Criminal Revision Application No.S-1 of 2018, decided on 3rd March, 2020.

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

----Ss. 379 & 411---Theft, dishonestly receiving stolen property---Appreciation of evidence---Benefit of doubt---Failure to prove dishonest retention of property---Scope---Accused was convicted under S.411, P.P.C. for having been found in possession of stolen article---Prosecution had failed to prove that the accused had dishonestly received or retained the stolen property knowing the same to be stolen---Place of recovery was also not in exclusive possession of the accused---Description of the stolen property as mentioned in the FIR was quite different from the description of property allegedly recovered on the pointation of accused---Investigating Officer had failed to produce the departure and arrival entries of roznamcha of the day of recovery---Prosecution had failed to prove its case against the accused, in circumstances---Appeal against conviction was allowed, in circumstances.

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

----S. 411---Dishonestly receiving stolen property---Scope---Mere possession of the stolen property is not sufficient to constitute an offence under S.411, P.P.C. rather in addition, it has to be established that the person in possession of the stolen property had dishonestly received or retained the property knowing or having reasons to believe the same to be stolen---Onus is always on the prosecution to prove the essential elements of the offence---In case of failure on the part of the prosecution to prove the basic ingredients i.e. receipt or retention of property belonging to someone else, the property being stolen one, existence of knowledge or belief on the part of the person found in possession and the receipt and retention is dishonest, no conviction can be awarded.

----Ss. 435 & 439--- Revisional jurisdiction---Scope---Scope of revision against findings of conviction is very limited, however, where the finding of fact affecting the decision is not based on the evidence or it is result of misreading or non-reading of evidence on record then revisional jurisdiction is very wide and is not a power, but a duty, which has to be exercised whenever facts calling for its exercise are brought to the notice of the court---Revisional Court can interfere for correction of manifest illegality or prevention of gross miscarriage of justice.

(d) Criminal trial---

----Benefit of doubt---Scope---Prosecution has to stand on its own legs in order to prove the charge against the accused person.

Ali Gul Abbassi for Applicant/ accused.

Alam Sher Bozdar for the Complainant.

YLR 2022 KARACHI HIGH COURT SINDH 1017 #

2022 Y L R 1017

[Sindh (Sukkur Bench)]

Before Muhammad Faisal Kamal Alam, J

NANDOMAL through Legal Heirs and others---Applicants

Versus

The P.O. SINDH through Secretary, Rehabilitation Sindh and others---Respondents

R.A. No. S-34 of 2003, decided on 1st October, 2021.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Civil Procedure Code (V of 1908), O.I, R.10---Suit for declaration and injunction---Evacuee property--- Non-impleading necessary parties---Subsequent purchaser for value---Concurrent findings of facts by two Courts below---Applicants/plaintiffs claimed to be in possession of suit property and sought its allotment in their favour---Plea raised by applicants/ plaintiffs was that allotment in favour of defendant/respondent was a result of collusion with authorities---Validity---Applicants/plaintiffs should have made subsequent purchasers as one of the defendants, who was necessary and proper party in terms of O. I, R.10, C.P.C.--- Predecessor-in-interest of applicants/plaintiffs opted not to implead subsequent purchaser as one of the defendants, who was bona fide purchaser for value and his rights and interests in respect of suit property were protected and could not be set aside, except through a proper proceedings---No collusion between official and private respondents inter se, inter alia---"Provisional Transfer Order" was issued by Settlement Department on 11-11-1959 and "Permanent Transfer Deed", which was a title document, was issued on 25-10-1967---When the same was challenged after six years through revision proceedings before authorities, it was rightly dismissed vide order dated 29-09-1973---No undue haste was present in such entire exercise of allotment of suit property to respondent/defendant---High Court declined to interfere in concurrent findings of two Courts below as the same did not suffer from any material irregularity, illegality nor were contrary to record---Revision was dismissed in circumstances.

Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Peer Baksh through LRs and others v. Mst. Khanzadi and others 2016 SCMR 1417; Haji Haroon Mandrah and another v.Abdul Rahim and others 2001 CLC 1312; Khushnood Ahmad v. Additional District Judge, Islamabad and others 2016 YLR 405; Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690; Munir Ahmad and others v. Noor Muhammad 1982 SCMR 1038; Jamal Din and another v. Mst. Pari Jan and 4 others 1984 SCMR 403; Walayat and others v. Muhammad Shafi and others PLD 1985 SC 278; Shadi Khan and another v. Khan Saeed-ud-Din Khan, Settlement and Rehabilitation Commis-sioner, Lahore and others PLD 1972 Lah. 262 and Dr. Abdul Rashid Paracha v. The Defence Housing Authority and others 2020 CLC 1746 ref.

Khalid Mehmood Shaikh for Applicants.

Noor Hassan Malik, A.A.G. for Respondents Nos. 1-3.

Abdul Mujeeb Shaikh for Respondent No.4.

YLR 2022 KARACHI HIGH COURT SINDH 1040 #

2022 Y L R 1040

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

Mian ABDUL JABBAR and another---Petitioners

Versus

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

Constitutional Petition No. D-7169 of 2019, decided on 28th October, 2020.

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

----S. 222---Framing of charge---Object, scope and purpose---Object of charge is to inform accused precisely and concisely of the nature of offence for which he was charged---Rationale for laying down detailed procedure for framing of charge is that accused should know nature of accusation against him so that he may be put on notice at the start of trial of allegations against him so that he may put up a solid defence to the offence so charged and ensure that he is not misled by vagueness in accusation---Spectrum of charge should be that all eventualities and exigencies till conclusion of trial could be made with caution that no prejudice is caused to accused.

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

----Ss. 9(a)(ix) & 9(a)(x)---Criminal Procedure Code (V of 1898), Ss. 227 & 233---Constitution of Pakistan, Art.199---Constitutional petition---Amendment of charge---Cheating and criminal breach of trust--- Petitioners were accused persons who were aggrieved of trial on the allegations of cheating members of public at large as well as criminal breach of trust with members of public at large---Validity---Petitioners knew nature of charge for which they had to defend themselves as trial was almost finished---If petitioners had any doubt about what charge they had to defend themselves against they would not have been able to cross-examine witnesses and would have raised such matter much earlier rather than at the fag-end of the trial---Petitioners, in the present case, cross-examined all 63 prosecution witnesses fully as charge was clear and unambiguous and they had been put on notice as to the allegations against which they had to defend themselves---Reference was filed in year 2005 and about 15 years had passed and the trial was not decided---Petition filed at such belated stage was to further delaying tactics---High Court declined to interfere in the matter as order passed by Trial Court was well reasoned---Constitutional petition was dismissed in circumstances.

Muhammad Muzammil Ali v. A.F.MA. Majid, Special Magistrate (Food) Sylhet PLD 1960 Dacca 943; Becharam Mukherji v. Emperor and another AIR (31) 1944 Calcutta 224; Emperor v. John Mclver AIR 1936 Madras 353 and Abdus Sattar Khan v. Abdul Hafeez Siddiqui and others C.P. No.D-2316 of 2006 ref.

Muhammad Anwar Tariq for Petitioners.

Zahid Hussain Baladi, Special Prosecutor, NAB for Respondents.

YLR 2022 KARACHI HIGH COURT SINDH 1054 #

2022 Y L R 1054

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

MUHAMMAD ASHFAQ QURESHI and others---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 39, 40, 41 of 2010 and Confirmation Case No. 10 of 2010, decided on 16th December, 2019.\

(a) Criminal trial---

----Judicial confession--- Retracted---Delay in recording confession---Effect---Retracted confession before Magistrate can be made basis of conviction in a capital case however it must be: (a) voluntary i.e. without threat or inducement and (b) its object must be to state the truth; assistance for which can be ascertained from (i) whether the confession appears truthful within the context of prosecution case and (ii) whether there is any other evidence on record which tends to corroborate truthfulness of the confession and (c) only minor irregularities regarding the rules concerning the recording of judicial confessions can be permitted as determined on a case to case basis, the main criteria being that such irregularities have not adversely affected the voluntariness or truthfulness of the confession---Slight delay in recording the confession after arrest of accused does not affect its legality and ability of Court to rely on the same.

Nazeer alias Wazeer v. The State PLD 2007 SC 202; Manjeet Singh v. The State PLD 2006 SC 30; Khan Muhammad and others v. The State 1999 SCMR 1818; Majeed v. The State 2010 SCMR 55 and Bahadur v. State PLD 1996 SC 336 rel.

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

----S. 7(a)---Qanun-e-Shahadat (10 of 1984), Art. 40---Criminal Procedure Code (V of 1898), S. 364---Terrorism---Appreciation of evidence---Judicial confession, retracting of---Disclosure of accused---Sectarian violence---Recovery on pointing of accused---Accused persons were alleged to have launched two terrorist attacks on a religious leader, in which many persons lost their lives due to suicidal bomb blast---No cogent evidence was available on record that the confessions were not made voluntarily i.e. by threat or inducement---Object of confessions was to tell the truth as it was to fit in with prosecution case and to corroborate other evidence on record---Though there were some irregularities in recording of confessions by Judicial Magistrate before whom the same were recorded but such irregularities had neither affected voluntariness nor truthfulness of the confessions---Such confessions were admissible and could form basis of convicting accused persons who made them---Accused persons were arrested together in the house of one accused where a huge quantity of Potassium used for making explosives (which quantity was too large to be foisted) and other explosive making equipment was recovered---Accused took police to suicide bomber's house which only he had known and not the police where a CD was recovered of a suicide bomber who was identified by his mother---Police recovered from accused a CD containing suicide bomber's death statement which fitted in with the confession of filming the suicide bomber---Attack was based on sectarian grounds and there was sufficient evidence on record to prove the same---Object, design and intention of conspiracy was to murder deceased and create fear, insecurity and terror amongst a specific sect, which the accused persons did---High Court maintained death sentence awarded to accused persons by Trial Court as the offence squarely fell within Anti-Terrorism Act, 1997---Appeal was dismissed in circumstances.

Kachkol v. The State 1997 PCr.LJ 352; Sheer Shah and another v. The State 1997 PCr.LJ 153; Bahadur Khan v. The State PLD 1995 SC 336; Alif Gul v. Noor Afzal and others PLD 2009 Pesh. 20; Mumtaz Bibi and others v. Ghulam Akbar PLD 1995 Pesh. 81; Anwar Bibi and others v. Raja 1997 SCMR 1081; Mah Gul v. The State 2009 SCMR 4; Muhammad Yamin alias Raja v. The State 2009 SCMR 84; Mursal Kazmi alias Qamar Shah v. The State 2009 SCMR 1410; Kanwar Anwaar Ali's case PLD 2019 SC 488; Javed Khan alias Bacha v. The State 2017 SCMR 524; Azhar Mehmood v. The State 2017 SCMR 135; Sabir Ali alias Fauji v. The State 2011 SCMR 563; Muhammad Ayaz v. The State 2011 SCMR 769; Kamal Din alias Kamala v. The State 2018 SCMR 577; Nazir Ahmad v. Muhammad Iqbal 2011 SCMR 527; Muhammad Azhar Hussain v. The State PLD 2019 SC 595; Muhammad Pervez v. The State 2007 SCMR 670; Mehro Khan v. Anwar and 2 others 2017 PCr.LJ Note 233; Ghous Bux v. Saleem and 3 others 2017 PCr.LJ 836; Tariq v. The State 2013 PCr.LJ 1786; Noor Muhammad v. The State 2017 PCr.LJ 479; Abdul Jabbar v. The State 2019 SCMR 129; Basharat Ali v. Muhammad Safdar 2017 SCMR 1601; Muhammad Zubair v. The State 2010 PCr.LJ 1892; Muhammad Fazil v. Bashir Muhammad Fazil v. Bashir Ahmad 2009 SCMR 1382; Muhammad Asif v. The State 2017 SCMR 486; Tariq Pervez v. The State 1995 SCMR 1345; Mehmood Ahmad v. The State 1995 SCMR 127; Rahat Ali v. The State 2010 SCMR 584; Muhammad Ali v. The State 2002 PCr.LJ 1631; Muhammad Zaman v. The State 2007 SCMR 813; Raz Muhammad v. The State PLD 2002 SC 56; Rehmat Ali alias Baba and another v. The State 2002 YLR 3860; Abdul Haq and another v. The State 2015 SCMR 1326; Dadullah and another v. The State 2015 SCMR 856; Ch.Muhammad Yaqoob v. The State 1992 SCMR 1983; Muhammad Amin v. The State PLD 2006 SC 219; Riaz Ahmad v. State 2004 SCMR 988; Zafar v. State 2008 SCMR 1254; Abbas v. State 2008 SCMR 108; Zakir Khan v. State 1995 SCMR 1793; Noor Muhammad v. State 1999 SCMR 2722 and Khalid Mehmood v. State 2017 SCMR 201 ref.

----Ss. 7(b), (c), (d) & (ff)---Qanun-e-Shahadat (10 of 1984), Art. 22---Terrorism---Appreciation of evidence---Benefit of doubt---Identification Parade---Role not described---Delay in conducting identification parade---Accused was arrested on the basis of his identification during Test Identification Parade---Only evidence against accused was his identification where the prosecution witness gave no role at the identification parade---As such the same had made identification evidence against accused weak---Prosecution witnesses had not seen the accused before the incident and identification parade was carried out over two years after the incident---Accused was not picked at a different identification parade by prosecution witness, who was a member of security of deceased and took the deceased to the hospital---Insufficient evidence was available to corroborate confessions of co-accused persons to come to the conclusion that prosecution had proved case against accused beyond reasonable doubt---High Court extended benefit of doubt to accused, set aside conviction and sentence awarded to him by Trial Court and acquitted him of the charge---Appeal was allowed in circumstances.

Mushtaq Ahmed for Appellants (in Special Criminal Anti-Terrorism Appeal No. 39 of 2010).

Salahuddin Khan Gandapur and Sabir Shah for Appellants (in Special Criminal Anti-Terrorism Appeal No. 40 of 2010).

Muhammad Akbar Khan and Ms. Fareeda Usmani for Appellant (in Special Criminal Anti-Terrorism Appeal No. 41 of 2010).

Muhammad Irfan and Mazhar Qayyum for the Complainant.

Muhammed Iqbal Awan, D.P.G. and Abrar Ali Khichi, A.P.G. for the State.

YLR 2022 KARACHI HIGH COURT SINDH 1081 #

2022 Y L R 1081

[Sindh]

Before Zulfiqar Ahmad Khan, J

MUHAMMAD ZULFIQAR through Attorney---Plaintiff

Versus

PAKISTAN RAILWAY EMPLOYEES, CO-OPERATIVE HOUSING SOCIETY LIMITED, KARACHI and 2 others---Defendants

Suit No. 1911 of 2010, decided on 5th November, 2021.

(a) Cantonments Act (II of 1924)---

----Ss. 2(iv), 185 & 273---Boundary wall, erection of---Approval/permission from Housing Society/Cantonment Board--- Original jurisdiction--- Suit for declaration / permanent injunction---Plaintiff had applied for "No Objection Certificate (NOC)" for erection of boundary wall on his plot situated in Housing Society which was granted to him by the same and wall was built accordingly--- Allegedly defendant Cantonment Board in collusion with defendant issued notice to plaintiff that such boundary wall was erected without approval---Cantonment Board, in written statement, objected that suit was barred by S.273 of Cantonments Act, 1924; that plaintiff had no cause of action; that building control portfolio lied with the Board and boundary wall was erected without any sanction---Held, that defendant was admittedly empowered to regularize buildings and to stop erection or re-erection thereof, and to demolish, if such erection or re-erection was violative of S.184 of the Act---Section 184 of the Act was penal provision that imposed penalty if one would raise illegal construction---Erection of boundary wall around a plot having not more than 08 feed height, and not abutting on the street, would not amount to a building requiring approval from the Cantonment Board---Suit was decreed accordingly.

Ghulam Mohiuddin for Plaintiff.

Nemo for Defendants.

YLR 2022 KARACHI HIGH COURT SINDH 1085 #

2022 Y L R 1085

[Sindh]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

FARHAN AHMED---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 776 and Confirmation Case No. 28 of 2019, decided on 17th March, 2021.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Medical evidence---Scope---Accused was charged for committing murder of his wife/sister of the complainant---Record showed that all the injuries sustained by the deceased were ante mortem in nature---Cause of death was multiple deep cuts at throat and multiple sharp edged weapon injuries over her body leading to irreversible hemorrhagic, shock and cardio respiratory failure---Evidence of the Lady Medical Officer went unchallenged and un-rebutted with regard to the number of injuries sustained by deceased and the type of weapon used---Deceased died of injuries caused by sharp edged weapon---Findings of the Trial Court required no interference by the High Court---Circumstances established that prosecution had proved its case against the accused, thus, conviction was upheld under S.302(b), P.P.C., but reduced the sentence of accused from that of the death penalty to life imprisonment---Appeal against conviction was disposed of with said modification in sentence.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Ocular account supported by medical evidence---Scope---Accused was charged for committing murder of his wife/sister of the complainant---Episode of incident had been furnished by solitary witness, who was real father of the accused, deposed that at 1/1:15 a.m. (night) when he was sleeping along with other family members, he heard commotions---Said witness along with his other sons went to the room of his son/accused and knocked the door but the knock went unheard, therefore, they made hole and opened the lock from outside and had seen that accused had churri in his hand and he had already cut the neck of his wife, they both were lying on ground, however, said witness had arranged ambulance---Victim was breathing, hence she was taken to the hospital where Doctors declared her dead, however, due to non-availability of lady doctor, the dead body of deceased was brought at another hospital---Police came at the hospital, examined the dead body and prepared inquest report---After conducting post-mortem the dead body was handed over to them for funeral---Witness was subjected to lengthy cross-examination by the defence, but nothing fruitful could be extracted from him---Witness stood firm to his stance---Evidence of said witness had been corroborated by the medical evidence coupled with recovery of bloodstained churri from the place of incident and bloodstained last worn clothes of deceased and the accused---Positive Forensic Science Laboratory Report established the crime---Presence of eye-witness on the spot was natural being father of the accused/inmate of the same house, his presence at the time of occurrence could not be doubted on any premise, whatsoever---Said witness was real father of the accused and was admittedly solitary witness of the incident---Said witness had no motive to falsely implicate his son in the murder case---Circumstances established that prosecution had proved its case against the accused, thus, conviction was upheld under S.302(b), P.P.C., but reduced the sentence of accused from that of the death penalty to life imprisonment---Appeal against conviction was disposed of with said modification in sentence.

----Witness--- Statement of solitary witness---Scope---Court could and might act on the testimony of a single witness provided he was wholly reliable---No legal impediment in convicting a person on the sole testimony of a single witness, but if there were doubts about the testimony, the court would insist on corroboration---In fact, it was not the quantity but the quality that was material.

Niaz-Ud-Din and another v. The State and another 2011 SCMR 725 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Minor contradictions and discrepancies in the statements of witnesses---Scope---Accused was charged for committing murder of his wife/sister of the complainant---In the present case, there were some minor contradictions and discrepancies in the evidence of the prosecution witnesses, however, the same with the passage of time usually took place almost in every criminal case and the same were trivial in nature, which did not go to the root of the cause, however, such trivial contradictions could not be made basis for acquittal of the accused, particularly in a murder case---Circumstances established that prosecution had proved its case against the accused, thus, conviction was upheld under S.302(b), P.P.C., but reduced the sentence of accused from that of the death penalty to life imprisonment---Appeal against conviction was disposed of with said modification in sentence.

Khan alias Khani and another v. The State 2006 SCMR 1744 rel.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Defence plea---Scope---Accused was charged for committing murder of his wife/sister of the complainant---Record showed that in the statement of accused recorded under S.342, Cr.P.C., the accused took plea that he committed murder of his wife on account of suspicion of being unchaste having illicit relations with brother-in-law of the accused---Reiterating the same plea, accused also appeared as his own witness under S. 340(2), Cr.P.C., but declined to produce defence evidence---Thus, it appeared that at the time accused chose not to disclose the name of any person, but at the time of recording his statement under S.342, Cr.P.C and statement on oath under S. 340(2), Cr.P.C., the accused named his brother-in-law whose name was disclosed to the accused by sister of deceased, but surprisingly said sister was not examined by the accused in his defence---Plea raised by the accused was found to be afterthought---Defence plea had not been substantiated by some material---Trial Court had rightly disbelieved the defence theory---Even otherwise, no one had licence to kill wife---Circumstances established that prosecution had proved its case against the accused, thus, conviction was upheld under S.302(b), P.P.C., but reduced the sentence of accused from that of the death penalty to life imprisonment---Appeal against conviction was disposed of with said modification in sentence.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Confessional statement of accused---Scope---Accused was charged for committing murder of his wife/sister of the complainant---In the present case, Judicial Magistrate had recorded confessional statement of accused while observing all the legal formalities and provided sufficient time to the accused for reflection---Confession of the accused was materially corroborated by other pieces of evidence produced by the prosecution at trial---Accused in his statement recorded under S.342, Cr.P.C., admitted that he had made true and voluntarily confession before the Judicial Magistrate---Circumstances established that prosecution had proved its case against the accused, thus, conviction was upheld under S.302(b), P.P.C., but reduced the sentence of accused from that of the death penalty to life imprisonment---Appeal against conviction was disposed of with said modification in sentence.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances--- Scope---Accused was charged for committing murder of his wife/sister of the complainant---Admittedly, there was no direct evidence in the present case and the motive of the incident had remained shrouded in mystery---Evidently, relation between wife and husband were normal before the night of incident---Prosecution had not brought on record as to what happened prior to the scene of occurrence or what prompted the accused to take away the life of his wife at night time---Confession of the accused was not recorded in accordance with the settled principles of law---Said facts were the mitigating circumstances---Single mitigating circumstance would be sufficient to put on guard the Court not to award the penalty of death but life imprisonment---In such circumstances, conviction under S.302(b), P.P.C. was upheld, but reduced the sentence of accused from that of the death penalty to life imprisonment---Appeal against conviction was disposed of with said modification in sentence.

Ghulam Murtaza v. The State 2021 SCMR 149 ref.

Muhammad Akram v. The State 2003 SCMR 855; Ghulam Murtaza v. The State 2021 SCMR 149 and Ghulam Mohyuddin v. State 2014 SCMR 1034 rel.

Muhammad Farooq for Appellant.

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

YLR 2022 KARACHI HIGH COURT SINDH 1125 #

2022 Y L R 1125

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi, J

Mst. RABIA---Applicant

Versus

STATION HOUSE OFFICER, POLICE STATION WALEED, LARAKANA

and 5 others---Respondents

Criminal Miscellaneous Application No. S-233 of 2020, decided on 29th October, 2020.

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

----S. 25---Criminal Procedure Code (V of 1898), Ss. 491 & 561-A---Custody of minors--- Habeas corpus--- Father with custody of minors---Territorial jurisdiction---Applicant was mother of minor children who sought recovery of her minor children from respondent who was their father---Validity---Guardian Court was the final arbiter for adjudicating question of custody of children and legal course for obtaining custody of child for a parent or one interested in obtaining custody of child was with Guardian Court within the meaning and scope of S.25 of Guardians and Wards Act, 1890---Where there appeared an exception to normal situation, child could not be left to suffer consequences of procedural hurdles and lethargy of system at the cost of child's welfare rather one deprived of lawful custody provided a way to invoke jurisdiction of Court under S.491, Cr.P.C. as interim measure till final arbiter would decide question of custody finally---Minors were residing with their father at place "K" and prima facie never accrued first step of abnormality i.e. 'illegal removal of child from lawful custody', which alone was sufficient to let normal legal course prevail---Matter was outside the limits of appellate criminal jurisdiction of High Court at place "L", therefore, High Court declined to interfere in the matter---Application was dismissed, in circumstances.

Mst. Nadia Perveen v. Mst. Almas Noreen and others PLD 2012 SC 758 and Mirjam Aberras Lehdeaho v. S.H.O. 2018 SCMR 427 rel.

Rafiq Ahmed K. Abro for Applicant.

Respondent No. 3 called absent.

Nizam-u-Din Abro for Respondent No.4.

Ali Anwar Kandhro, Additional Prosecutor General for Respondents.

YLR 2022 KARACHI HIGH COURT SINDH 1163 #

2022 Y L R 1163

[Sindh]

Before Mohammad Karim Khan Agha and Abdul Mobeen Lakho, JJ

MUHAMMAD FAISAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 274 of 2014, decided on 13th February, 2020.

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

----Ss. 9(c) & 29---Transportation of narcotics---Presumption from possession of illicit articles---Appreciation of evidence---Scope---Accused along with others was arrested while transporting 110 kilograms of heroin powder---Arrest and recovery was made on the spot and the accused was caught red handed with the narcotic---Departure entry at the police station clearly showed that the raiding party was going to the place of arrest on the basis of spy information, which corroborated the prosecution case---First Information Report was also registered with promptitude giving no time for concoction and the S.161, Cr.P.C. statements were recorded promptly which were not significantly improved upon by the prosecution witnesses at the time of giving evidence---Narcotic was recovered from the boot of the car of which the accused was a passenger at the time of its recovery and the car was owned by him which he had admitted in his statement under S.342, Cr.P.C.---No suggestion of tampering with the narcotic was made---Once recovery was proved the onus shifted to the accused to show his innocence in that at least he had no knowledge of the narcotic but the accused was not able to do so---Prosecution had proved its case beyond a reasonable doubt against the accused---Appeal against conviction was dismissed, in ircumstances.

Sayyar v. The State PLD 2015 Pesh. 157; Shafquat Mehmood v.The State 2015 YLR 2163; Khan Bux v. The State 2016 YLR 85; Syed Karim v. Anti Narcotics Force PLD 2003 Kar. 606; Ahmed Gul v. The State 2015 MLD 507; Taj Muhammad v. The State 2016 MLD 1825; Hussain Bux alias Kabacho Channa v. The State 2017 PCr.LJ 501; Bashir v. The State 2017 PCr.LJ 1298; Qaisarullah and others v. The State 2009 SCMR 579; Gul Badshah v. The State 2011 SCMR 984; Muhammad Kamran v. The State 2019 SCMR 1314; Muhammad Noor and others v. The State 2010 SCMR 927; Inayatullah and another v. The State 2011 PCr.LJ 398; Zafar v. The State 2008 SCMR 1254; Ikramullah and others v. The State 2015 SCMR 1002; The State v. Sohail Khan 2019 SCMR 1288 and The State v. Muhammad Ramzan and others 2019 SCMR 1295 ref.

Nadir Khan v. State 1998 SCMR 1899 and Mehboob-ur-Rehman v. State 2010 MLD 481 rel.

(b) Criminal trial---

----Witness--- Police witness--- Scope---Evidence of a police witness is as reliable as any other witness provided that no enmity exists between him and the accused.

Ijaz Ahmed v. The State 2009 SCMR 99 ref.

----Statement--- Minor contradictions---Scope---Minor contradictions which do not affect the materiality of the evidence can be ignored.

Zakir Khan v. State 1995 SCMR 1793 ref.

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

----S. 25---Criminal Procedure Code (V of 1898), S. 103---Mode of making searches and arrest---Search to be made in presence of witnesses---Scope---Section 103 of Cr.P.C. is excluded for offences falling under the Control of Narcotic Substances Act, 1997, by virtue of its S.25.

Muhammad Hanif v. The State 2003 SCMR 1237 ref.

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

----Ss. 20, 21 & 22---Power to issue warrants---Power of entry, seizure and arrest without warrant---Power to seizure and arrest in public places---Scope---Sections 20, 21 & 22 of the Control of Narcotic Substances Act, 1997 are directory in nature and non-compliance with the same is not fatal to the prosecution case.

Inayatullah and another v. The State 2011 PCr.LJ 398 ref.

Ch. Muhammad Saeed-uz-Zaman for Appellant.

Ms. Abida Parveen Channar, Special Prosecutor ANF for the State.

YLR 2022 KARACHI HIGH COURT SINDH 1174 #

2022 Y L R 1174

[Sindh (Sukkur Bench)]

Before Fahim Ahmed Siddiqui and Khadim Hussain Tunio, JJ

KHADIM HUSSAIN SHAH---Appellant

Versus

The STATE through National Accountability Bureau---Respondent

Criminal Appeal No. D-135 of 2018, decided on 21st October, 2020.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iii)(vi) & 14---Illegal pecuniary advantages and misuse of authority---Appreciation of evidence---Shifting of onus to prove---Principle---Applicability---Accused was Food Supervisor/Incharge Wheat Procurement Center and was alleged to have embezzled government funds and wheat which was at his disposal---Trial Court convicted the accused and sentenced him to imprisonment for ten years---Validity---Prosecution could shift under S.14 of National Accountability Ordinance, 1999, the burden upon accused if it succeeded in linking the capability of accused for corruption with some material from record that manifested corruption---Accused remained incharge of certain Wheat Procurement Centers and in that capacity he was entrusted with some commodities and sufficient cash-flow through Banks was at his disposal---Accused was assigned task of procurement of wheat---Prosecution established payments to growers through Banks on the basis of purchase bills issued by accused---Prosecution also established that entire quantity of procured wheat was not received at PRC---Burden was on accused to establish through evidence that either he had not procured alleged quantity or he had dispatched or disposed of entire quantity of wheat as per relevant policy and procedure---Accused was required to establish that alleged quantity of wheat bags and empty bags were not misappropriated---Accused could not discharge such burden from record or in the shape of any other evidence---Even accused could not offer to enter into witness box in order to disprove prosecution case or to examine anyone in his defence---High Court declined to interfere in conviction and sentence awarded to accused by Trial Court as the same was based upon proper appreciation of evidence---Appeal was dismissed, in circumstances.

Ghulam Qadir Mahesar and others v. The State PLD 2004 Kar. 210 and Sanaullah v. The State 1990 PCr.LJ 466 distinguished.

S.A.K Rehmani v. The State 2005 SCMR 364; Sohrab Khan Marri Khuda Bakhsh v. The State 2017 SCMR 669; Malik Din v. Chairman National Accountability Bureau and another 2019 SCMR 372 and Tariq Saeed v. The State 2020 SCMR 1177 ref.

Nisar Ahmed Bhandbhro for Appellant.

Muhammad Zubair Malik, Special Prosecutor NAB.

YLR 2022 KARACHI HIGH COURT SINDH 1211 #

2022 Y L R 1211

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi, J

ASHIQUE ALI and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.S-37 of 2014, decided on 26th February, 2021.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Promptitude in lodging the FIR---Scope---Accused were charged for committing murder of the father of complainant by firing---Record showed that incident took place at 08.15 p.m., FIR was registered on the same day at 08.30 p.m. and the post-mortem of the deceased was conducted at 9.30 p.m., which excluded the possibility of consultation or deliberation on the part of the prosecution---Evidence of the witnesses had established that after the incident complainant immediately went to the police station by leaving other witnesses at the dead body, and after the FIR, police along with the complainant came at the place of vardat wherefrom police referred the dead body to hospital for post-mortem---Complainant gave full particulars of the incident to the police---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

Zarshad v. Bahadur Khan and others 1972 SCMR 644; Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812; Imran Ashraf and 7 ohters v. The State 2001 SCMR 424; Ishtiaq Masih v. The State 2010 SCMR 1039; Irshad Ahmed v. The State 2011 SCMR 1190; Mst. Rukhsana Begum and others v. Sajad and others 2017 SCMR 596; Abdul Jabbar alias Jabbari v. The State 2017 SCMR 1155; Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344; Lal Khan v. The State 2006 SCMR 1846; Sher Khan and 2 others v. The State 2008 YLR 2334; Zahir Yousaf and others v. The State and another 2017 SCMR 2002; Haleem and others v. The State 2017 SCMR 709; Muhammad Akram v. The State 2009 SCMR 230; Tariq Pervez v. The State 1995 SCMR 1345; Hashim Qasim and another v. The State 2017 SCMR 986; Mst. Nazia Anwar v. The State and others 2018 SCMR 911; Faryad Ali v. The State 2008 SCMR 1086; The State v. Tariq Mahmood 1987 PCr.LJ 2173; Ayub Masih v. The State PLD Supreme Court 1048; Abdul Rehman v. The State and others 2016 PCr.LJ 101; Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152 and Wilayat Ali v. The State and another 2004 SCMR 477 ref.

Farman Ali and another v. The State and another 2020 SCMR 597 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Related and interested witnesses--- Scope--- Accused were charged for committing murder of the father of complainant by firing----In the present case, defence objected that the witnesses were relative of deceased and were interested, therefore, their evidence could not be relied upon---Said objection of defence had no force as although the witnesses were relative to the deceased but they specifically deposed that complainant and the witnesses along with deceased were coming from the house of someone and when they reached near a medical store the incident took place---Complainant immediately approached the police station within fifteen minutes where his FIR was registered, he gave full particulars of the incident in the FIR, thereafter, police proceeded towards the place of vardat and referred the dead body for post-mortem, hence the presence of complainant and the eye witnesses at the place of incident fully established---Admittedly, witnesses were closely related to the deceased but fact of the matter remained that their mere relationship would not render them to be interested or partisan witnesses when the same had been corroborated with the medical evidence---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152; Abid Ali and 2 others v. The State 2011 SCMR 208 and Zulfiqar Ahmed and another v. State 2011 SCMR 492 rel.

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account was in line with the medical evidence---Accused were charged for committing murder of the father of complainant by firing---Defence objected that 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 therefore the accused were liable to be acquitted---Said plea of defence had no force as all the witnesses deposed that all the accused actively participated in the commission of offence and they fired from their weapons upon the deceased which hit the deceased---Evidence of witnesses was corroborated by medical evidence including the recovery of crime empties from place of vardat and pistol from the accused after few hours of the incident with positive Forensic Science Laboratory Report---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

Muhammad Riaz and another v. The State and another 2007 SCMR 1413 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Non-recovery of weapon of offence---Effect---Accused were charged for committing murder of the father of complainant by firing---Allegedly, crime weapons used by the accused at the time of offence were not recovered from them, therefore, the accused could not be connected with the murder of deceased---Said contention of defence had no force in view of that, all the prosecution witnesses supported the case of prosecution by deposing that the accused directly fired from their pistols which hit the deceased---Direct evidence of witnesses was further corroborated by medical evidence as the doctor who examined the deceased had found four separate firearm injuries on the person of the deceased with entry and exit wounds---Where charge was proved by other direct, natural and confidence inspiring evidence, then non-recovery of crime weapon was not fatal to prosecution case---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

Sikander Teghani alias Muhammad Bux Teghani v. The State 2016 Y L R 1098 rel.

(e) Criminal trial---

----Minor contradictions in the evidence of prosecution witnesses---Scope---Where some minor contradictions were noticed which were not sufficient to create any serious doubt the same could be ignored which were always found in each and every case.

Zakir Khan v. The State 1995 SCMR 1793 rel.

Asif Ali Abdul Razzak Soomro for Appellants.

Abdul Razzak Jamali and Irfan Hyder Jamali for the Complainant.

Muhammad Noonari, Deputy Prosecutor General for Respondent.

YLR 2022 KARACHI HIGH COURT SINDH 1247 #

2022 Y L R 1247

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

AMIR HUSSAIN---Applicant

Versus

JAMALUDDIN and 4 others---Respondents

Revision Application No. S-57 of 2019, decided on 29th December, 2021.

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

----Ss. 12, 42 & 54---Limitation Act (IX of 1908), S. 12 & Art. 152---Suit for declaration, permanent injunction and specific performance was filed by petitioner on ground that he purchased agricultural land for consideration which was paid in presence of witnesses and since then he was enjoying possession and cultivation; that he was paying land revenue to government; that it was decided at time of execution of agreement of sale that the registered sale deed would be executed; that after lapse of 10 years the respondent (being close relative of petitioner) did not execute the registered sale deed in favour of petitioner---Suit was dismissed----Appeal was also rejected being time barred---Petitioner contended that valuable rights were involved in the case; that the matter required decision on merits rather than on technicalities; and that petitioner was seriously ill and due to such illness, he could not file appeal within time; and that the fact of illness had also been brought before appellate Court---Respondent contended that he neither offered for sale through agreement nor accepted such offer from petitioner; that alleged sale agreement was false/forged; that suit land had already been transferred through registered sale deed in favour of third party and that respondent was not the owner of the same----Validity---Record showed that suit was barred by S.42 of Specific Relief Act, 1877, as the alleged agreement was executed in 2008 but suit had been filed in 2018---Alleged deed/agreement did not contain any description regarding execution of registered sale deed---Appeal was not preferred within period prescribed by law---Order rejecting the plaint was passed while the petitioner applied for true copy of order which was prepared/delivered to him---Petitioner had failed to explain as to why soon after passing the order he had not preferred the appeal before District Court and the same was preferred in the month of February, 2019---Revision petition was dismissed accordingly.

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

----S. 12--- Condonation of delay---Obtaining copy of documents---Scope---Due to non-availability of required but not mandatory documents, one can obtain a period from the office/court after filing of an appeal within the prescribed period of limitation because from the date of announcement of the judgment/order limitation period having commenced, no interruption could stop the limitation running---However, the period spent for obtaining cop of impugned judgment/order could be exempted.

Abdul Sattar Mahesar for Applicant.

Saeed Ahmed for Respondent No.1.

Mehboob Ali Wassan, A.A.-G. for Respondents Nos.2 to 5.

YLR 2022 KARACHI HIGH COURT SINDH 1334 #

2022 Y L R 1334

[Sindh (Hyderabad Bench)]

Before Adnan-ul-Karim Memon, J

MUHAMMAD ILYAS---Applicant

Versus

ADDITIONAL SESSIONS JUDGE, SHADAHDPUR and 5 others---Respondents

Criminal Transfer Application No. S-15 of 2020, decided on 24th August, 2020.

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

----S. 526---Transfer of case---Scope---Complainant sought transfer of case from one district to another on the ground that the accused was a landlord of the locality, who had support of ruling party, as such, he was continuously harassing and pressurizing him to withdraw the criminal case or to change the version---Scope---Complainant had not approached the concerned police with any complaint---No allegations were levelled against the Presiding Officer of the Trial Court---Apprehension that the complainant would not get a fair and just trial could not be considered for the simple reason that it had to be established through cogent material which factor was lacking in the case---Trial Court was directed to ensure safety of the complainant and his witnesses, at the time of hearing of the case, through all modes of security as provided under the law so that the witnesses could depose their testimony with ease, and that too, in a stress-free environment---Transfer application was dismissed.

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

----S. 526---Transfer of case---Scope---Any person who is aggrieved can file petition before the High Court under S. 526, Cr.P.C. if there appears reasonable apprehension of injustice being done due to the conduct of the courts subordinate to the High Court---Such grievances must be agitated before the High Court but should be supported by legal requirements of law.

K.B. Lutuf Ali Leghari for Applicant.

Muhammad Zaman Zanur for Respondent No.5.

Shahid Ahmed Shaikh, D.P.G.

YLR 2022 KARACHI HIGH COURT SINDH 1348 #

2022 Y L R 1348

[Sindh]

Before Muhammad Iqbal Kalhoro and Abdul Mobeen Lakho, JJ

CIVIL AVIATION AUTHORITY through Director General, Karachi--Appellant

Versus

MUHAMMAD ABDUL ALEEM---Respondent

High Court Appeal No. 239 of 2020, decided on 4th January, 2021.

(a) Law Reforms Ordinance (XII of 1972)---

----S. 3---High Court Appeal---Interim order---Interlocutory order---Maintain-ability---Scope---Appellant was aggrieved of order passed by Single Judge of High Court whereby an ad-interim order passed in favour of respondent had continued despite information about his retirement was conveyed with exception to extension of such relief---Validity---Scope of appeal was limited to decide the nature and concomitant effects of the interim order operating in favour of respondent in the aforesaid context and keeping in view that it had allowed continuation of departmental proceedings against the respondent but had restrained the Authority from passing a final order on the basis of impugned show-cause notice without permission of the court---Unfortunately, for one reason or the other, the issue between the parties could not be laid to rest and meanwhile retirement age of the respondent had approached---No final order on account of interim order could be passed against the respondent, although as claimed the departmental proceedings had been concluded, and he was successfully reaping its benefits and evading consequences of the charge against him---At the stage, when the respondent was retiring next day and his suit had not progressed materially, it was not hard to discern that if the interim order was allowed to continue, it would not only be in disregard to its own terms permitting continuation of proceedings against the respondent but would result into miscarriage of justice---Respondent would emerge vindicated without any formal inquest by the court into merits of his case, his suit would likely become irrelevant/infructuous and the respondent would be permanently deprived and debarred from pressing the charges against the respondent before any forum for final adjudication---Appeal was allowed and the original interim order was modified in the terms, whereby the appellant was permitted to proceed with and pass an order, which could include a final order in the light of already held proceedings, if any---However, such proceedings and its outcome, if any, would be subject to a final decision to be made on the suit filed by the respondent---Appeal was disposed of accordingly.

2018 PLC (C.S.) Note 69; 2011 PLC (C.S.) 1527 and 2018 PLC (C.S.) Note 194 ref.

(b) Law Reforms Ordinance (XII of 1972)---

----S. 3---High Court Appeal---Interim order---Interlocutory order---Maintain-ability---Scope---Intervention by the Appellate Court at the interim stage of a suit is not barred completely, particularly when it is found inevitable to obviate miscarriage of justice and where apparently it is arbitrary, capricious and against well settled principle of law---No bar in law can be enforced against the jurisdiction of an Appellate Court to examine the nature of ad-interim order in the aforesaid context to pass an appropriate remedial order and preserve intrinsic nature of the controversy between the parties for a final adjudication.

----S. 3---High Court Appeal---Interim order---Interlocutory order---Purpose---Scope---Object of passing an interim/ interlocutory order is to maintain the status quo, the situation obtaining on the date when a party aggrieved by a certain action approaches the court, and to ensure that meanwhile no new development detrimental to rights of the parties is created, which may pose a hurdle in the way of deciding the case on merits.

Khalid Mehmood Siddiqui for Appellant.

Muhammad Ali Lakhani for Respondent.

YLR 2022 KARACHI HIGH COURT SINDH 1377 #

2022 Y L R 1377

[Sindh]

Before Aftab Ahmed Gorar, J

MUHAMMAD SHAKEEL---Applicant

Versus

The STATE---Respondent

Bail Application No.293 of 2021, decided on 1st September, 2021.

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

----S. 498---Penal Code (XLV of 1860), Ss. 365-B & 34---Kidnapping, abducting or inducing woman to compel for marriage--- Common intention--- Pre-arrest bail, grant of--- Un-natural conduct---Delayed FIR---Scope---Accused sought pre-arrest bail in FIR lodged under Ss. 365-B & 34, P.P.C.---Name of accused was not mentioned in the FIR and the same was lodged against unknown persons though the victim/ complainant knew the accused and his family---FIR was lodged with a delay of 2 days without any explanation---No complaint of misuse of concession of bail or tampering the record was pointed out---Record was silent about the vehicle used for kidnapping and the place where the victim was kept for about seven days, therefore, probability could not be ruled out that the accused might have been falsely involved in the case---Case of accused was one of further inquiry---Accused was admitted to pre-arrest bail, in circumstances.

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

----S. 497---Constitution of Pakistan, Art. 4---Rights of individuals to be dealt in accordance with law---Bail---Object---Object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail---Object of bail is neither punitive nor preventive and therefore, deprivation of liberty must be considered a punishment, unless it may be required to ensure the presence of accused during trial---Punishment begins after conviction and not before it, as in criminal justice system every man is deemed to be innocent until duly found guilty---High Court observed purpose of putting the un-convicted persons in custody is nothing but to secure their attendance at the trial---Even otherwise, life and liberty of a citizen is very precious and guaranteed by Article 4 of the Constitution of Islamic Republic of Pakistan.

PLD 1989 SC 585 ref.

----S. 497---Bail---Further inquiry---Scope---Bail, in case of further inquiry, is to be granted to an accused as a matter of right and not by way of any concession or grace.

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

----S.497---Bail---Tentative assessment---Scope---Deeper appreciation of evidence and circumstances appearing in the case are not permitted and only tentative assessment is to be made, however, where accused satisfies the Court that there are reasonable grounds to believe that he is not guilty of such offence, then the Court must release him on bail.

Yar Muhammad v. The State and another 2004 YLR 2230 ref.

Samsam Ali Khan for Applicant.

Ms. Asia Munir for the Complainant.

YLR 2022 KARACHI HIGH COURT SINDH 1414 #

2022 Y L R 1414

[Sindh]

Before Irfan Saadat Khan and Yousuf Ali Sayeed, JJ

TAHIRA BEGUM (Late) through L.Rs. and 2 others---Appellants

Versus

Mst. NASIRA ANSARI and 6 others---Respondents

High Court Appeal No. 340 of 2006, decided on 1st July, 2021.

Benami transaction---

----Proof---Suit for declaration and injunction was filed by respondent/ plaintiff claiming that suit property in the name of appellant/defendant was held Benami for her deceased husband who was father of respondent/plaintiff---Suit was decreed in favour of respondent/ plaintiff--- Validity--- No material was brought on record to support the assertion of Benami arrangement inter se the deceased and appellant/defendant his wife or demonstrated that deceased mainly provided funds through which disputed properties had been acquired---Findings of Single Judge of High Court as to funding was predicated entirely on inferences drawn from disparate excepts from oral evidence tendered---Other than bare assertion in plaint that disputed properties had been purchased/financed by deceased in the name of his widow as Benami properties, there was no further elucidation as to motive underpinning alleged Benami arrangement or even as to details/mechanics of relevant transactions---Division Bench of High Court set aside judgment passed by Single Judge of High Court as it suffered from material infirmities which had gone to root of the matter---Division Bench of High Court dismissed suit filed by respondent/plaintiff---Intra Court Appeal was allowed, in circumstances.

Shahenshah Hussain for Appellants.

Aminuddin Ansari for Respondent No.1.

Nemo for Respondents Nos.2 to 7.

YLR 2022 KARACHI HIGH COURT SINDH 1426 #

2022 Y L R 1426

[Sindh (Hyderabad Bench)]

Before Fahim Ahmed Siddiqui, J

SHER DIL and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No. S-198 of 2020, decided on 18th May, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 337-L, 336 & 34---Itlaf-i-salahiyyat-i-udw, hurt and common intention---Bail---Scope---Allegation against accused persons was that they entered into the house of complainant while armed with baton and iron rod and used the same on the complainant as a result of which she allegedly received injuries and lost mobility of her left hand---Accused persons were none other than son and grandson of the complainant---Motive of the incident was the demand of complainant to her son to hand over the legal share from the properties of her husband---Loss of functionality of hand could not be established without final medical certificate, which was still awaited---Plea of minority was raised for the grandson of complainant which was duly supported by his birth certificate---Being minor, it was quite comprehensible that he had participated under the influence of his father, hence his case was distinguishable---Son of complainant was not entitled to bail as the motive was solely against him, while the grandson of complainant was entitled for bail---Petition was disposed of accordingly.

Arif Ali Bhatti for Applicants.

Ali Nazeer Gopang for the Complainant.

Ms. Sobia Bhatti, Asst. P.G. along with Dr. Nasreen Shah, Senior Woman Medico-Legal Officer, Taluka Hospital, Sakrand and ASI Rano Khan Mashori of Police Station Sakrand for the State.

YLR 2022 KARACHI HIGH COURT SINDH 1448 #

2022 Y L R 1448

[Sindh]

Before Irfan Saadat Khan and Agha Faisal, JJ

Dr. PERVAIZ MEHMOOD HASHMI---Petitioner

Versus

SINDH BUILDING CONTROL AUTHORITY through Director General and 3 others---Respondents

Constitutional Petition No. 297 of 2013, decided on 3rd December, 2021.

Sindh Building Control Ordinance (V of 1979)---

----S. 6---Removal of construction---Scope---Constitutional petition was filed on the ground that the respondent had illegally constructed multi-storeyed building on his property without there being properly approved building plan and map---Validity---Building was raised without there being any approved map or building plan, which fact was endorsed by the provincial building control authority---No lease could be granted to respondent simply on the ground that some other buildings were also constructed in the area which did not have proper map or building plan---Building control authority was directed to demolish the unlawful construction raised on the building and also get the utility services of the building disconnected---Constitutional petition was disposed of accordingly.

Khawaja Sahms-ul-Islam for Petitioner.

Dhani Bux Lashari for Respondents Nos.1 and 2.

Ali Safdar Deepar, Assistant Advocate General (AAG) for Respondent No.3.

Muhammad Tariq for Respondent No.4.

YLR 2022 KARACHI HIGH COURT SINDH 1464 #

2022 Y L R 1464

[Sindh (Hyderabad Bench)]

Before Adnan-ul-Karim Memon, J

ABDUL GHAFFAR---Appellant

Versus

MUHAMMAD AALAM and 3 others---Respondents

First Appeal No. S-12 of 2020, decided on 7th September, 2020.

Sindh Public Property (Removal of Encroachment) Act (XVIII of 2010)---

----S. 14---Suit for removal of encroachment--- Scope--- Mukhtiarkar submitted report before the Anti-Encroachment Tribunal that he visited the site and found that the disputed street was blocked by the committee members of a madrasa by constructing bathroom and kitchen whereas according to map of Colony the same was shown as street---Anti-Encroachment Tribunal decreed the suit as prayed for---Validity---Conversion of an amenity plot was illegal---Encroachment of amenity plot could not be allowed to sustain under the law, which aspect the official respondents had to look into and restore its position in accordance with law---Encroachment of an amenity plot to another use was treated as an abuse of discretion and therefore was unlawful for the simple reason that the paramount object of modern city planning was to ensure maximum comforts for the residents of the city by providing maximum facilities and that a public functionary entrusted with the work to achieve the object could not act in a manner, which might defeat the referred objective---Deviation from the planned scheme would naturally result in discomfort and inconvenience to others---Appeal was dismissed.

Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883 rel.

YLR 2022 KARACHI HIGH COURT SINDH 1493 #

2022 Y L R 1493

[Sindh]

Before Kausar Sultana Hussain, J

MOOSA JUMANI---Petitioner

Versus

VIITH ADDITIONAL DISTRICT JUDGE (MCAC), KARACHI SOUTH and 2 others---Respondents

C.P. No.S-730 of 2020, decided on 23rd November, 2021.

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

----S. 15---Ejectment petition---Failure to pay rent and personal bona fide need of landlord--- Ejectment petition filed by respondent/landlord on grounds of default in payment of rent and personal bona fide need was allowed and Rent Controller directed the petitioner/tenant to vacate the property---Petitioner's appeal was dismissed by District Court---Petitioner contended that decisions of Courts below were against the oral/documentary evidence and record; that petitioner had been depositing the rent of rented shop since 1991; that respondent was not physically/mentally fit to perform business of gold ornaments; that out of total 3 shops on ground floor of the building, petitioner was tenant of shop situated in the center of shops and respondent was in possession of shop which was locked for over more than 12 years while respondent got the another shop vacated in another parallel proceeding from its tenant which was larger in size and having two corner-shutters same was of more attractive location for business of gold ornaments---Respondent contended that petitioner had failed to establish mala fide on part of landlord---Held, that petitioner admitted during his cross-examination that he had not paid the rent from May 1997 to December 1999 and further said that he had deposited the rent in Court---Petitioner failed to produce any receipt of rent or any other proof depicting the deposit of rent for said disputed period---Respondent averred that he was undertaking jewelry business in one shop which could not cater his business need being too small---Another Shop (subject matter of present case) was situated between two shops, therefore, one shop could not serve the purpose of extension/expansion of business---Respondent was quite consistent with his assertion of personal need which could not be rebutted---Revision petition was dismissed and petitioner was required to hand over physical possession of the said shop to respondent within 4 months.

Jawad Hyder Rizvi for Petitioner.

Shaikh M. Mushtaq for Respondent No.3.

YLR 2022 KARACHI HIGH COURT SINDH 1504 #

2022 Y L R 1504

[Sindh]

Before Zafar Ahmed Rajput, J

ALI NAVEED SHAIKH through Attorney and 25 others---Plaintiffs

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of National Health Services Regulations and Coordination, Islamabad and 2 others---

Defendants

Suits Nos. 731, 584, 585, 586, 730 and 881 of 2021, decided on 2nd July, 2021.

(a) Pakistan Medical Commission Act (XXXIII of 2020)---

----S. 7(1)---Fourteen day's notice to member---Provision of S.7(1) of Pakistan Medical Commission Act, 2020 is directory in nature inasmuch as no penal consequences are provided under Pakistan Medical Commission Act, 2020, for its non-compliance.

(b) Pakistan Medical Commission Act (XXXIII of 2020)---

----Ss. 7, 8, 13 & 18---Specific Relief Act (I of 1877), Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration and injunction---Interim injunction, refusal of---Admission to Dental Colleges---Plaintiffs were candidates for admission in Dental Colleges, who appeared in Medical and Dental Colleges Admission Test---Plaintiffs sought suspension of test result for framing of pass marks on the ground that study hours for BDS were less than those of MBBS---Validity---There were three domains of skills (i) Cognitive, (ii) Psychomotor and (iii) Affective---Cognitive domain deals with skills in which purely mental work is required e.g. making diagnoses, interpreting patient data, development of treatment plans etc.---Psychomotor domain deals with skills that an expert performs with his/her hands e.g. giving injections, performing a surgical procedure, extracting teeth etc.---Affective domain deals with professional behaviors that any expert is expected to display e.g. showing care, asking questions politely, taking care of safety for patients and self, truth telling etc.---Cognitive and affective domains required for dental and medical graduates remain the same, as both graduates (MBBS and BDS) are required to interpret data, make diagnoses, develop and execute a treatment plan and perform suitable patient follow-up and deal with common complications---Subject specific differences could be there in psychomotor domain, as skills that are required by dental surgeon are different from those required by a medical graduate and in this domain too, there are commonalities i.e. both should be capable of giving right injections in prescribed way, both can give incisions etc.---Though BDS program was shorter in duration was not less intense and deliberation than MBBS program---Field related training was different but dexterity and aptitude required to students of the two medical education were the same---Lowering pass percentage of BDS could jeopardize profession of dentistry---Prime and paramount consideration for lawmakers in such regard was to produce best health care doctors and dentists in the country and when merit was improved, the students who desired to get admission in dentistry would certainly improve their capacity---Ultimate result would be in the best interest of the country which should not be compromised to achieve commercial interest of private dental colleges---High Court declined to grant interim injunction---Application was dismissed in circumstances.

M. Shahid Saigol and 16 others v. Messrs Kohinoor Mills Ltd. and 7 others PLD 1995 Lah. 264; Sher Asfandyar Khan and others v. Neelofar Shah and others 2020 CLD 1260; Ahmad Nadeem v. Chairman, Arbitration Council and others 1991 MLD 1198; Dr. Fatima Arshad v. Government of the Punjab and others 2020 PLC (C.S.) 688; Marghub Siddiqi v. Hamid Ahmed Khan and 2 others 1974 SCMR 519; Ghulam Hassan v. Jamshaid Ali and others 2001 SCMR 1001; Niaz Muhammad Khan v. Mian Fazal Raqib PLD 1974 SC 134; Kamil Nook Khan v. Controlling Authority, Union Committee No.60, Karachi and 3 others PLD 1970 Kar. 730; Ch. Abdul Ghani v. Deputy Commissioner and others 1987 CLC 2401; Ghulam Moeenuddin v. Controlling Authority, Bahawalnagar and others PLD 1967 Lah. 1040; Anam Jabbar and 6 others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad, A.K. and 12 others 2013 YLR 169 and Muhammad Zubair and 5 others v. Government of Pakistan through Secretary Health, Islam-abad and 22 others 2012 CLC 1071 ref.

Haider Waheed and Faiz Khalil for Plaintiffs (in Suits Nos. 584, 585, 586, 730 and 731 of 2021).

Kashif Hanif for Plaintiff (in Suit No.881 of 2021).

Ghulam Mohiuddin, Assistant Attorney General on behalf of Defendant No.1 (in all Suits).

Zeeshan Abdullah and Adnan Abdullah for Defendant No.2 (in all Suits).

YLR 2022 KARACHI HIGH COURT SINDH 1531 #

2022 Y L R 1531

[Sindh]

Before Salahuddin Panhwar, J

Mrs. NASIRA KHALIQUE and 7 others---Appellants

Versus

Mst. RABIA SHARIF through L.Rs.---Respondents

R.A. No.100 of 2015, decided on 22nd September, 2020.

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

----S. 42---Suit for declaration---Gift mutation---Scope---Plaintiffs assailed alleged transfer of suit property in favour of the respondents' predecessor by their father---Property in question was transferred on the basis of contents of gift shown in Nikahnama executed in 1954, however, same got materialized (mutation) in the year 1982---Burden was upon the beneficiaries not only to prove the claimed gift but also validity thereof---Undeniably the ownership of suit property was with father of the plaintiffs, who was brother of the husband of claimed donee---No exception to position that Nikahnama was a document between bride and bridegroom---Mere referral to the signature of a person in capacity of a witness did not bind him to any term agreed or mentioned in the Nikahnama---Authorities before relying on such a document for transferring title were required to have served notice upon such person---Such illegal order passed by the authorities did not come in way of the plaintiffs particularly when the donor himself had never appeared before the authorities for confirming the claimed gift---Revision application was allowed and the suit was decreed, in circumstances.

2014 SCMR 914; 2015 CLR 111; 2010 SCMR 121; 2003 MLD 131; 2011 SCMR 222; 2006 YLR 1783; 2006 YLR 1090 and PLD 2015 Kar. 216 ref.

Muhammad Sarwar v. Mumtaz Bibi 2020 SCMR 276 rel.

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

----S. 115---Civil revision---Concurrent findings---Scope---Normally High Court in revisional jurisdiction is slow in interfering in concurrent findings of two courts below but where there is prima facie misreading as well departure from settled principles of law High Court is always competent to disturb such concurrent findings.

Applicant No.2 present.

Abdul Sattar Gujjal for Respondents Nos. 1, 2, 4 and 5.

S. Hassan Abidi for K.M.C.

Aqil Zaidi for Respondent No.7.

YLR 2022 KARACHI HIGH COURT SINDH 1540 #

2022 Y L R 1540

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi, J

SAEEDO alias SAINDAD---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.S-61 of 2016, decided on 4th June, 2021.

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

----Ss. 302(b), 324, 337-H(2), 504, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rash and negligent act, intentional insult with intent to provoke breach of peace, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt--- Improvements made by complainant---Scope---Prosecution case was that the accused party made firing upon the complainant party, due to which the cousin of the complainant was hit and died, whereas brother and other cousin of complainant sustained injuries---Previous enmity between the party was the motive behind the occurrence---Record showed that the complainant had made improvements in the case by changing allegations against the accused persons mentioned in the FIR at the time of recording his evidence before the Trial Court, which made the entire case as doubtful---First Information Report showed that complainant had stated that three accused persons fired upon the deceased with their Kalashnikovs, which hit him and he died---Complainant at the time of his evidence deposed in his examination-in-chief that one accused fired upon the deceased who received injuries at the left eye and chest and left arm so also thigh of left leg and exonerated other two accused from the allegation of firing upon the deceased---Complainant, however, stated during the cross-examination that he did not remember that he had mentioned in the FIR that three accused persons fired direct shots upon the deceased---Complainant stated in his cross-examination that the accused after causing injury to deceased dragged him with the motor cycle---Said fact had not been disclosed by the complainant in the FIR, which cleared the position that the complainant was not an eye-witness of the incident---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.

Ahmad Khan and another v. The State 2007 PCr.LJ 117 and Nadeem alias Kala v. The State and others 2018 SCMR 153 ref.

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

----Ss. 302(b), 324, 337-H(2), 504, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rash and negligent act, intentional insult with intent to provoke breach of peace, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Contradictions--- Prosecution case was that the accused party made firing upon the complainant party, due to which the cousin of the complainant was hit and died, whereas brother and other cousin of complainant sustained injuries---Complainant in the FIR stated that the deceased received one fire arm injury at left eye near the pupil, two injuries on the left side of the chest, two injuries on the left arm, one injury on the thigh of left leg which were six injuries in number and in the inquest report prepared by the police the injuries were total eight in number, however the post mortem report showed that the deceased received only five injuries which also included entry and exit wounds---Medical Officer who was examined by the prosecution deposed that the deceased received only three injuries--- Difficult to ascertain, in circumstances, as to how many injuries were received by the deceased, which created very serious doubt in the case of prosecution---Complainant during the cross-examination stated that he received dead body after the post mortem at 6.00 p.m., whereas the post-mortem report showed that the post-mortem was started at 6.00 p.m. and was finished at 7.00 p.m.---If the post-mortem report was correct then how the complainant received the dead body of deceased at 6.00 p.m., which too made the case of prosecution as 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.

----Ss. 302(b), 324, 337-H(2), 504, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rash and negligent act, intentional insult with intent to provoke breach of peace, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Prosecution case was that the accused party made firing upon the complainant party, due to which the cousin of the complainant was hit and died, whereas brother and other cousin of complainant sustained injuries---Contradictions in the evidence of witnesses were noticed regarding reaching at the police station from the place of vardat and on using the vehicles/motor cycles as it was not mentioned in the FIR nor the person who were driving the said motorcycles were examined by the Investigation Officer---Said contradictions/improvements clearly indicated that the complainant and the other witnesses were not available at the time of incident and they did not witness the incident and the incident did not take place in the manner stated by the prosecution and the witnesses were telling lie before the police so also before the court, hence their evidence was not reliable nor trustworthy and confidence inspiring--- 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)---

(e) Criminal trial---

----Benefit of doubt---Principle---In case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace.

Tariq Parvaiz v. The State 1995 SCMR 1345 rel.

(f) Criminal trial---

----Benefit of doubt---Principle---If there was 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 of the doubt not as a matter of grace and concession but as a matter of right.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Ghulam Shabir Baloch and Mujahid Ali Jatoi for Appellant.

Mir Ahmed Raza A. Sundrani for the Complainant.

Muhammad Noonari, Deputy Prosecutor General for the State.

YLR 2022 KARACHI HIGH COURT SINDH 1564 #

2022 Y L R 1564

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ali Sangi, J

BADAR ZAMAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.S-152 of 2018, decided on 20th September, 2021.

Sindh Arms Act (V of 2013)---

----S. 23(1)(a)---Recovery of illegal weapon---Appreciation of evidence---Benefit of doubt---Recovery witnesses---Contradiction in evidence---Effect---Accused was convicted by Trial Court and sentenced to imprisonment for ten years as an illegal weapon was allegedly recovered from him---Validity---Both witnesses gave contradictory evidence in respect of place of recovery which had created very serious doubt in the case of prosecution---Prosecution was to prove its case beyond a reasonable doubt---Even a single circumstance which created reasonable doubt in the mind of a prudent man had come in evidence of prosecution, the benefit was to go to accused not as a matter of grace or concession but as a matter of right---Prosecution failed to prove its case against accused beyond any reasonable doubt---High Court set aside conviction and sentence awarded to accused and acquitted him of the charge---Appeal was allowed, in circumstances.

Tariq Parvaiz v. The State 1995 SCMR 1345 rel.

Muhammad Sachal R. Awan for Appellant.

Shahzado Saleem Nahiyoon, D.P.G. for the State.

YLR 2022 KARACHI HIGH COURT SINDH 1569 #

2022 Y L R 1569

[Sindh (Hyderabad Bench)]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

MUHAMMAD WAJID---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-18 of 2014 and Confirmation Case No. 6 of 2014, decided on 29th June, 2021.

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

----Ss. 302(b) & 376---Qatl-i-amd, rape---Appreciation of evidence---Medical evidence---Scope---Accused was charged for committing murder of the minor daughter of complainant after her rape---Apparently there was no rape (penetration) and only a case of attempted rape based on the chemical report which found semen on the vaginal swabs---Chemical report however was not put to the accused for his explanation during the recording of his S.342, Cr.P.C statement---No DNA test was carried out to show that the semen which was found on the body of the deceased matched with that of the accused---Prosecution had not been able to prove the charge of rape (or attempted rape) of the child against the accused beyond a reasonable doubt---By extending the benefit of the doubt to the accused, he was acquitted of the charge of rape under S.376, P.P.C.

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

----S. 342---Evidence not put to the accused---Scope---Evidence not put to accused during the recording of his S.342, Cr.P.C. statement could not be used to form a basis of his conviction.

----Ss. 302(b) & 376---Qatl-i-amd, rape---Appreciation of evidence---Delay of twenty four hours in lodging the FIR---Scope---Accused was charged for committing murder of the minor daughter of complainant after her rape---First Information Report had been lodged after a delay of 24 hours---Complainant/father of the victim stated in his evidence that his daughter went out at 6.45 p.m. and did not return after an hour i.e. 7.45 p.m. where after he and his brother started their search for the missing girl---During the search complainant reported the incident at Police Station and announcements were made through loud speakers of the mosque---Search continued throughout the night and atabout 4.30 a.m. complainant went home and at 8.30 am on next day complainant was informed that a dead body had been found at Katchra Kundi---Complainant went to Katchra Kundi which was only 40/50 paces from his house and identified the dead body of his daughter who was taken to hospital where medical examination was carried out and then the dead body was delivered to complainant and thereafter buried the body and then lodged the FIR---High Court observed that in cases of minor children going missing it was not unusual for there to be a delay in lodging the FIR as the first priority for the parents was to search and try and find the missing child as happened in the case---Complainant when found his dead child his priority was to take her to the hospital and on the return of the dead body his concern shifted to lodging the FIR---Even otherwise during the search a few hours after the incident the complainant had already reported the matter to the concerned Police Station---Based on particular facts and circumstances of the case the delay in lodging the FIR had been explained and such delay was not fatal to the prosecution case---Circumstances established that the prosecution had proved its case against the accused to the extent of murder of the victim beyond any shadow of doubt---Appeal against conviction was partially dismissed accordingly.

Muhammad Ismail and others v. The State 2017 SCMR 898; Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127 and Imran Ali v. The State 2018 SCMR 1372 ref.

Rahat Ali v. State 2001 PCr.LJ 98 rel.

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

----Ss. 302(b) & 376---Qatl-i-amd, rape---Appreciation of evidence---Last seen evidence---Scope---Accused was charged for committing murder of the minor daughter of complainant after her rape---Accused was named in the FIR as a suspected person on the basis that a witness had last seen the accused with the minor child---Neither the complainant nor said witness had any enmity with the accused and had no reason to falsely implicate him in the case---Even otherwise the accused was only named as a suspect for whom it was for the police to investigate whether or not he was involved in the crime---Complainant's evidence reflected that his FIR was with no material improvement as such there was no reason to doubt the evidence of the complainant---Witness of last seen evidence gave evidence that on the day of occurrence in the evening he had seen the deceased at a shop with the accused whom he knew---Said witness lived in the locality and was not a chance witness and was an independent witness and thus there was no reason to disbelieve his evidence of his identification of the accused and the deceased---Within one to 12 hours of that citing, the deceased was found dead---Said witness was an independent witness and had no reason to attempt to falsely implicate the accused in the case---Although, the case did not meet the strict legal requirements of last seen evidence, however, some weight could be given to it in the case based on the particular facts and circumstances of the case based in particular on the confession of the accused---Circumstances established that the prosecution had proved its case against the accused to the extent of murder of the victim, beyond any shadow of doubt---Appeal against conviction was partially dismissed accordingly.

Fayyaz Ahmed v. State 2017 SCMR 2026 and Muhammad Abid v. State PLD 2018 SC 813 rel.

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

----Ss. 302(b) & 376---Qatl-i-amd, rape---Appreciation of evidence---Recovery of dopata of the victim on the pointation of accused--- Reliance--- Scope--- Accused was charged for committing murder of the minor daughter of complainant after her rape---One day after his arrest the accused took the Investigating Officer in the case and Mashir to his closed house where he had not been living for some time and opened the door of the house with one of the keys which were recovered from him---On search of the house the dopata which belonged to the deceased was recovered from the house of the accused which had previously been locked and was not in use as the accused was living elsewhere nearby---Mashirnama of recovery of the dopata was exhibited at trial along with dopata which the witness of the last seen evidence along with another witness recognized---Circumstances established that the prosecution had proved its case against the accused to the extent of murder of the victim, beyond any shadow of doubt---Appeal against conviction was partially dismissed accordingly.

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

----Ss. 302(b) & 376---Qatl-i-amd, rape---Appreciation of evidence---Judicial confession of accused---Scope---Accused was charged for committing murder of the minor daughter of complainant after her rape---Two days after the arrest, the accused was produced before Judicial Magistrate who recorded his confession---Judicial confession was not said to be retracted or not made voluntarily during cross-examination of the Judicial Magistrate---During the recording of the accused S.342, Cr.P.C statement firstly he stated that the confession was made but without his consent and then in the same breath stated that he did not give any such confession before the Judicial Magistrate---Accused in his evidence under oath did not retract his judicial confession and did not even mention it---Evidence of the Judicial Magistrate who recorded the judicial confession of the accused was not even dented in cross-examination---Confession of the accused was voluntary and with the object of telling the truth as it tied in with the prosecution case and there were few, if any, procedural irregularities and thus relied on the judicial confession against the accused---Circumstances established that the prosecution had proved its case against the accused to the extent of murder of the victim, beyond any shadow of doubt---Appeal against conviction was partially dismissed accordingly.

(g) Criminal trial---

----Judicial confession---Retraction---Scope---Even a retracted confession before a Judicial Magistrate could be the basis of convicting the accused in a capital case provided that it was made voluntary and its object must be to state the truth.

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

----Ss. 302(b) & 376---Qatl-i-amd, rape---Appreciation of evidence---Contradictions in the evidence of witnesses---Scope---Accused was charged for committing murder of the minor daughter of complainant after her rape---All the witnesses were consistent in their evidence---If there were some contradictions in their evidence, same could be 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 the accused---Circumstances established that the prosecution had proved its case against the accused to the extent of murder of the victim, beyond any shadow of doubt---Appeal against conviction was partially dismissed accordingly.

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---Qatl-i-amd, rape---Appreciation of evidence--- Police witnesses---Scope---Accused was charged for committing murder of the minor daughter of complainant after her rape---Police witnesses had no enmity or ill will towards the accused and had no reason to falsely implicate him in the case by making up the place of his arrest or foisting the dopata on him---Evidence of the Police witnesses could be fully relied upon, in circumstances---Circumstances established that the prosecution had proved its case against the accused to the extent of murder of the victim, beyond any shadow of doubt---Appeal against conviction was partially dismissed accordingly.

Mustaq Ahmed v. The State 2020 SCMR 474 rel.

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

----Ss. 302(b) & 376---Qatl-i-amd, rape---Appreciation of evidence---Substitution of real culprit---Scope---Accused was charged for committing murder of the minor daughter of complainant after her rape---High Court observed that it did not appeal to reason, logic or commonsense that a father would let the real murderer of his baby daughter go scot free by substituting him with an innocent person (the appellant)---Circumstances established that the prosecution had proved its case against the accused to the extent of murder of the victim, beyond any shadow of doubt---Appeal against conviction was partially dismissed accordingly.

Allah Ditta v. State PLD 2002 SC 52 rel.

Mian Taj Muhammad Keerio for Appellant.

Miss Safa Hisbani, A.P.G. for the Complainant.

Miss Safa Hsibani, A.P.G. for the State.

YLR 2022 KARACHI HIGH COURT SINDH 1602 #

2022 Y L R 1602

[Sindh]

Before Fahim Ahmed Siddiqui, J

Dr. MAHREEN BALOCH---Petitioner

Versus

PROVINCE OF SINDH through Secretary Home Department, Karachi and 3 others---Respondents

Consitutional Petition No .S-854 of 2017, decided on 27th July, 2021.

Criminal Procedure Code (V of 1898)---

----S. 491---Guardians and Wards Act (VIII of 1890), S.25---Constitution of Pakistan, Art. 199---Constitutional petition---Habeas corpus, writ of---Custody of minor---Petitioner sought recovery of her two minor daughters who had been taken away from her---Validity---Jurisdiction of Courts under Guardians and Wards Act, 1890, in respect of custody of minors and for recovery / production of minors under S.491, Cr.P.C. were entirely different and there was no question of one exceeding the other, overlapping the other or destroying the other in as much as there was no repugnancy between the two provisions---Provisions of S. 491, Cr.P.C. provided efficacious and speedy relief for release of persons kept under illegal and improper custody---In matters pertaining to custody of minors of tender age, High Court was empowered to issue directions under S. 491, Cr.P.C. and could pass an order regarding custody without prejudice to the right of parties for final determination of dispute pertaining to custody of minors by Guardian Court---High Court was empowered to pass appropriate orders to ensure that rights conferred upon minor children were fully protected in a suitable manner in exercise of inherent jurisdiction---High Court converted Constitutional petition into application under S. 491, Cr.P.C. and directed Joint Investigation Team so constituted to trace out respondent and minor girls and then proceed further in the matter---Application was disposed of accordingly.

PLD 1997 Kar. 267; 2017 YLR Note 219, p.157; 2013 MLD 1640; 2014 MLD 38; 2014 YLR 705; PLD 2014 Sindh 598; 2015 MLD 833; 2016 MLD 29 and 2017 MLD 427 rel.

Umer Lakhani and Ashfaq Ahmed for Petitioner.

Hussain Bux, Additional Prosecutor General, Sindh for Respondents Nos. 1 to 3.

Nemo for Respondent No.4.

Shaikh Jawaid Mir and Ghulam Sarwar Thebo for brother of Respondent No.4.

Nadir Khan Burdi for mother of Respondent No.4.

Mustafa Safvi for Respondent.

YLR 2022 KARACHI HIGH COURT SINDH 1639 #

2022 Y L R 1639

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

REHMATULLAH---Appellant

Versus

The STATE (A.N.F.)---Respondent

Criminal Appeal No. 342 of 2019, decided on 31st January, 2022.

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

----S.9(c)---Possession and transportation of 1000 kilograms charas---Appreciation of evidence---First Information Report was lodged with promptitude---Scope---Prosecution case was that 1000 kilograms charas was recovered from the diesel tank of the truck of accused persons---Record showed that the FIR was registered with promptitude giving no time for concoction---Statements under S.161, Cr.P.C. of the witnesses were recorded promptly which were not significantly improved upon by any witness at the time of giving evidence---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 and transportation of 1000 kilograms charas---Appreciation of evidence---Prosecution case was that 1000 kilograms charas was recovered from the diesel tank of the truck of accused persons---Record showed that the prosecution witnesses proceeded to the pointed place based on spy information to check a particular truck which was being driven by the named accused which contained huge quantities of narcotics was stopped at the particular place where the accused was arrested whilst being in the particular truck as per spy information and from where the recovery was made---Arrest and recovery was made on the spot and the accused was caught red handed with the narcotics by the police whose evidence fully corroborated each other in all material respects as well as the prosecution case---In the present case no enmity had been suggested against any of the police witnesses and as such the police had no reason to falsely implicate the accused in a false case---Police evidence which was corroborative in all material respects was believable---Narcotics were recovered from the truck which the accused was driving alone with no other passengers and the narcotics were recovered on his pointation from secret sealed cavities near/under the diesel tank of the truck which only he could have known about---Truck was recovered along with its key and the narcotics---Accused was the sole person in the truck and was driving at the time when it was stopped and the accused himself pointed out the secret cavities where the narcotic was hidden and as such he had actual knowledge that he was transporting the narcotics---To foist such a large amount of charas being in total 1000 kilograms on the accused was extremely difficult---Circumstances established that the prosecution had proved its case against the accused---Appeal against conviction was dismissed accordingly.

Khuda Bakhsh v. The State 2015 SCMR 735; State through Director ANF Peshawar v. Muhammad Ramzan and others 2019 SCMR 1295; State through Director ANF Peshawar v. Fakhar Zaman 2019 SCMR 1122; State through Director ANF Peshawar v. Sohail Khan 2019 SCMR 1288 and Mushtaq Ahmed v. The State 2020 SCMR 474 ref.

Hussain Shah v. The State PLD 2020 SC 132; Mustaq Ahmed v. The State 2020 SCMR 474; Zakir Khan v. State 1995 SCMR 1793 and Nadir Khan v. State 1998 SCMR 1899 and The State v. Abdali Shah 2009 SCMR 291 rel.

----Witness---Police witness---Scope---Evidence of a police witness is as reliable as any other witness provided that no enmity exists between them and the accused.

(d) Criminal trial---

----Evidence--- Minor contradictions---Scope---Minor contradictions which does not affect the materiality of the evidence can be ignored.

Zakir Khan v. State 1995 SCMR 1793 rel.

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

----Ss. 9(c) & 29---Possession and transportation of 1000 kilograms charas---Appreciation of evidence---Burden of proof---Scope---Prosecution case was that 1000 kilograms charas was recovered from the diesel tank of the truck of accused persons---Under S.29 Control of Narcotic Substances Act, 1997 once the recovery had been proven as in the case the onus shifted to the accused to show his innocence in that at least he had no knowledge of the narcotics---Accused had not been able to do so in the case---Circumstances established that the prosecution had proved its case against the accused---Appeal against conviction was dismissed accordingly.

Mehboob-Ur-Rehman v. State 2010 MLD 481 rel.

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

----S.9(c)---Possession and transportation of 1000 kilograms charas---Appreciation of evidence---Chemical analysis report---Scope---Prosecution case was that 1000 kilograms charas was recovered from the diesel tank of the truck of accused persons---Chemical report was positive---Fact that a sample was taken for chemical analysis from each recovered packet of narcotic, as in that case, which each turned out to be positive would render all the material in each recovered packet as a narcotic---Circumstances established that the prosecution had proved its case against the accused---Appeal against conviction was dismissed accordingly.

Ameer Zeb v. The State PLD 2012 SC 380 rel.

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

----S.9(c)---Possession and transportation of 1000 kilograms charas---Appreciation of evidence---Safe custody---Scope---Prosecution case was that 1000 kilograms charas was recovered from the diesel tank of the truck of accused persons---Recovered narcotics were sealed on the spot and kept in safe custody at the malkana from the time of their recovery to the time when they were taken for chemical analysis---No suggestion of tampering with the same had been made---Recovered narcotics were kept in the malkana and then the next day taken for chemical examination by witness in sealed condition---Circumstances established that the prosecution had proved its case against the accused---Appeal against conviction was dismissed accordingly.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 103---Possession and transportation of 1000 kilograms charas---Appreciation of evidence---Association of private witnesses---Scope--- Prosecution case was that 1000 kilograms charas was recovered from the diesel tank of the truck of accused persons---Although, no independent mashir was associated with the arrest and recovery of the accused and narcotic, S. 103, Cr.P.C., had been excluded for offences falling under the Control of Narcotic Substances Act, 1997, by virtue of S. 25 of the Act---Due to public apathy most citizens were not prepared to act as independent mashirs in such like cases---Incident was night time and nobody was available to be an independent mashir---Circumstances established that the prosecution had proved its case against the accused---Appeal against conviction was dismissed accordingly.

Muhammad Hanif v. The State 2003 SCMR 1237 and Shabbir Hussain's case 2021 SCMR 198 rel.

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

----S. 9(c)---Possession of narcotic substances---Scope---High Court observed that courts were expected to adopt a dynamic approach and not to acquit the accused on technicalities.

Ghulam Qadir v. The State PLD 2006 SC 61 rel.

Muhammad Farooq for Appellant.

Habib Ahmed, Special Prosecutor ANF for the State.

YLR 2022 KARACHI HIGH COURT SINDH 1662 #

2022 Y L R 1662

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi, J

LIAQAT ALI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-731 of 2020, decided on 28th September, 2020.

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

----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, refusal of---Absconsion---Scope---Accused sought release on bail in an FIR registered under S. 489-F, P.P.C. claiming that he had no concern with the complainant party---Record reflected that after lodging of FIR, the complainant had remained absconder for about 8 years---Had the accused been innocent he should have joined the trial but he had chosen to become fugitive from law, hence, he was not entitled for any relief---Claim of the complainant was found supported by the statements of prosecution witnesses recorded under S. 161, Cr.P.C. as well as the subject bounced cheque, which was in possession of the Investigating Officer---Accused had failed to establish his case within the purview of subsection (2) of S. 497, Cr.P.C. and appeared to be prima facie involved in the commission of offence--Application was dismissed, in circumstances.

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

----S. 497---Bail---Scope---None can claim bail as of right in non-bailable offences even though the same do not fall under the prohibited clause of S.497, Cr.P.C.

Muhammad Siddique v. Imitaz Begum and 2 others 2002 SCMR 442 and Imtiaz Ahmed and another v. The State PLD 1997 SC 545 ref.

Nasarullah A. Khaskheli for Applicant.

Ms. Sobia Bhatti, Asstt. Prosecutor General, Sindh.

YLR 2022 KARACHI HIGH COURT SINDH 1672 #

2022 Y L R 1672

[Sindh]

Before Irfan Saadat Khan and Muhammad Faisal Kamal Alam, JJ

Captain S.M. ASLAM---Petitioner

Versus

KARACHI BUILDING CONTROL AUTHORITY through Chief Executive, Nazim-e-Aala and 3 others---Respondents

Constitutional Petition No. D-771 of 2004, decided on 12th October, 2021.

Building Control Authority---

----Commercialization fee--- Petitioner desired that Karachi Development Authority should charge commercialization rates as determined in year 1980 for conversion of status of his property---Validity---Policy was framed by authorities in year 2003 which was approved on 6-1-2004---As per new Policy commercialization rate in respect of the area, where the plot of the petitioner was situated, was fixed at Rs.8000/- per square yard---Petitioner was duly informed by authorities that since a policy was approved and he was to complete the formalities necessary in that regard so that his application could be considered/processed---Imperative that the case of the petitioner was to be examined on the facts of his case---Rates as applied to neighboursof petitioner could not be applied---High Court directed the petitioner to approach concerned authority for issuing him a challan with regard to commercialization charges at the rate fixed in new Policy---High Court directed the authorities to process case of commercialization of petitioner as per rules and procedure---Constitutional petition was disposed of accordingly.

Petitioner in person.

Khurram Ghayas for Respondents Nos.1 and 4.

Dhani Bux Lashari and Sartaj Malgani for Respondent No.2.

Nemo for Respondent No.3.

Miran Muhammad Shah, Additional Advocate General (AAG) on Court notice.

YLR 2022 KARACHI HIGH COURT SINDH 1681 #

2022 Y L R 1681

[Sindh]

Before Muhammad Iqbal Kalhoro and Shamsuddin Abbasi, JJ

AMANULLAH and 2 others---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 75, 76 and 77 of 2019, decided on 13th October, 2020.

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

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

----S. 154---First information report---Scope---First Information Report was always treated as a cornerstone of the prosecution case to establish guilt against those involved in a crime---First Information Report has a significant role to play.

Akhtar Ali's case 2008 SCMR 6 rel.

(d) Criminal trial---

----Witness---Dishonest improvement---Effect---Improvements once found deliberate and dishonest would cast serious doubt on the veracity of such witness.

Farman Ahmad v. Muhammad Inayat and others 2007 SCMR 1825 rel.

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

----Ss. 302(b), 324 & 34---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, 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---Delay in dispatching the recovered weapon of offence and crime empties for analysis---Scope---Accused were charged for committing murder of two persons including brother-in-law of complainant by firing, causing injuries to a person and also throwing a ball cracker which could not explode---Record showed that the empties allegedly secured on 10.10.2014 and pistols having been shown recovered on 13.10.2014 and 14.11.2014 and till recovery of the pistols the empties were not sent to the Ballistic Expert---Weapon allegedly recovered from the possession of accused had been sent to Ballistic Expert for its matching with the crime empties and the same had been received in the office of Forensic Division after three days of its recovery---Weapon allegedly recovered from the possession of co-accused had been sent to Ballistic Expert for its matching with the crime empties and the same had been received in the office of Forensic Division after four days of its recovery---Delay in dispatch of the case property to the office of Forensic Division had not been explained---Neither the names of Police Officials, who had taken the case property to the office of Forensic Division, had been mentioned nor examined by the prosecution at trial in order to prove safe transit of the case property to the expert---In that background of the matter, two interpretations were possible, one that the alleged empties and pistol had not been tampered and the other that those were not in safe hand and had been tampered---Positive Forensic Science Laboratory Report qua the crime empties and weapons being delayed without furnishing any plausible explanation, would not advance the prosecution case---Even otherwise the prosecution had failed to substantiate the point of safe custody of case property and its safe transit to the expert through cogent and reliable evidence and the alleged recovery of crime weapons, on the face of it, seemed to be doubtful---Recoveries of fire-arms and empties are always considered to be corroborative piece of evidence---Such kind of evidence by itself is not sufficient to bring home the charges against the accused---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

(f) Criminal trial---

----Evidence---Beneficial construction---Scope---If two interpretations of evidence were possible, the one favouring the accused would be taken into consideration.

(g) Criminal trial---

----Recovery---Recovery of weapon of offence and empties---Corroborative evidence---Scope---Recoveries of fire-arms and empties are always considered to be corroborative piece of evidence---Such kind of evidence by itself is not sufficient to bring home the charges against the accused more particularly when the other material put-forward by the prosecution in respect of guilt of the accused had been disbelieved.

Imran Ashraf and 7 others v. The State 2001 SCMR 424 rel.

(h) Criminal trial---

----Benefit of doubt---Principle---Even a single doubt if found reasonable would be sufficient to acquit the accused, giving him/them benefit of doubt because bundle of doubts are not required to extend the legal benefit to the accused.

Riaz Masih alias Mithoo v. The State 1995 SCMR 1730 rel.

(i) Criminal trial---

----Benefit of doubt---Presumption of innocence---Principle---Involvement of an accused in heinous nature of offence is not sufficient to convict him as the accused continues with presumption of innocence until found guilty at the end of the trial, for which the prosecution is bound to establish the case against the accused beyond any shadow of reasonable doubt by producing confidence inspiring and trustworthy evidence.

Muhammad Farooq for Appellants (in Special Criminal Anti-Terrorism Appeals Nos. 75 and 76 of 2019).

Jamshed Iqbal for Appellants (in Special Criminal Anti-Terrorism Appeal No. 75 of 2019).

Iqbal Shah for Appellants (in Special Criminal Anti-Terrorism Appeals Nos. 75 and 77 of 2019).

Abrar Ali Khichi, D.P.G for the State (in all the three Special Criminal Anti-Terrorism Appeals).

YLR 2022 KARACHI HIGH COURT SINDH 1737 #

2022 Y L R 1737

[Sindh (Hyderabad Bench)]

Before Khadim Hussain Tunio and Yousuf Ali Sayeed, JJ

ABDUL RAZZAQUE BREHMANI---Appellant

Versus

NIAZ alias MAKHAN and 3 others---Respondents

Criminal Acquittal Appeal No. D-47 of 2019, decided on 10th March, 2021.

(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 weapons, unlawful assembly---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Dishonest improvements made by witnesses---Scope---Accused were involved in an act of armed affray between communal factions toward which the complainant and his relatives were drawn, thus came to be caught in the cross fire, with one of his cousins, suffering a gunshot wound to the neck, succumbed to his injuries---Eye-witnesses had given contradictory versions on material points and made some dishonest improvements---First Information Report was silent about allegation of abetment nor prosecution witnesses in their statements under S.161, Cr.P.C., had stated about the abetment by any of the accused, but the complainant in his evidence had stated about the abetment by accused, thus had deviated from his version of FIR and his evidence was not supported by the eye-witnesses who were silent on that score---Complainant in his evidence had given the contradictory version than FIR and stated that when they reached at hospital, the accused persons armed with weapons came there---Complainant had nowhere stated in his evidence about the injuries sustained by the passersby---Eye-witness had given different version and according to him, when they reached at hospital, they saw that persons belonged to Rustamani community armed with ammunitions fired from their respective weapons upon his cousin---According to him, the fire also hit passersby, but caste of the injured were not mentioned in the FIR---On the contrary, as per medical evidence two persons were injured---Complainant had nowhere stated in his evidence regarding firing by present accused persons upon them in order to commit their qatl-i-amd---Likewise, prosecution witness had also not attributed any overt act to accused and had not taken the names of present accused in his statement---No misreading of evidence could be pointed out by the complainant/appellant and prosecution, which would have resulted into grave miscarriage of justice---Appeal against acquittal was dismissed, in circumstances.

(b) 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 weapons, unlawful assembly---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Non-production of material witnesses---Scope---Accused were involved in an act of armed affray between communal factions toward which the complainant and his relatives were drawn, thus came to be caught in the cross fire, with one of his cousins, suffering a gunshot wound to the neck and succumbed to his injuries---Record showed that the two injured were nowhere cited as witnesses in the case nor examined before the court to confirm the factum of firing by the present accused persons and injuries actually caused to them from the hands of accused, thus, the more important link in the prosecution story was therefore, missing---Evidence of prosecution, in circumstances, was pregnant with material contradictions, variations, dishonest improvements and infirmities, which made the case of prosecution and veracity of the witnesses highly doubtful, which further reflected that the incident might not have taken place the way it was narrated---Prosecution witnesses were not confirmed about the role played by present accused persons and had given different versions---Considering contradictory statements of eye-witnesses, the presence of present accused persons on the spot became highly doubtful, as overt act was specifically attributed to absconding accused---In absence of authentic piece of evidence of corroboration, accused persons could not be held vicariously liable for the act of absconding accused persons--- No misreading of evidence could be pointed out by the complainant/appellant and prosecution, which would have resulted into grave miscarriage of justice---Appeal against acquittal was dismissed, in circumstances.

----S. 417---Appeal against acquittal---Presumption---Presumption of innocence applied doubly upon acquittal---Such a finding is not to be disturbed unless there is some discernible perversity in the determination of the Trial Court that could be said to have caused a miscarriage of justice.

Muhammad Zafar and another v. Rustam and others 2017 SCMR 1639 rel.

(d) Appeal against acquittal---

----Double presumption of innocence---Scope---Every person was innocent unless proven guilty and upon acquittal by a court of competent jurisdiction, such presumption is doubled.

Mian Taj Muhammad Keerio for Appellant.

Nemo for Respondents Nos. 1 to 3.

Sana Memon, A.P.G. for Respondent No. 4/State.

YLR 2022 KARACHI HIGH COURT SINDH 1778 #

2022 Y L R 1778

[Sindh (Hyderabad Bench)]

Before Adnan-ul-Karim Memon, J

HAMID ALI---Applicant

Versus

1st ADDITIONAL SESSIONS JUDGE AND EX-OFFICIO JUSTICE OF PEACE and 4 others---Respondents

Criminal Miscellaneous Application No.S-427 of 2020, decided on 7th September, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Ex-officio Justice of Peace, powers of---Scope--- Applicant / proposed accused assailed the findings of Justice of Peace whereby SSP was directed to record the statement of the complainant---Held; throwing out the complaint without giving the complainant an opportunity to prove the allegations by recording statement would be improper in exercise of powers under S. 561-A, Cr.P.C. and would amount to serious departure from normal course---If the SSP was restrained from investigating the matter in the beginning, his statutory obligation and duty, it would tantamount to distracting him from normal course---Applicant had failed to show as to how the allegations mentioned in the complaint were outcome of malice or ulterior motives and/or against the principles of natural justice---Application was dismissed, in circumstances.

Nisar Ahmed Bhatti v. Additional Sessions Judge and others 2016 YLR 146 distinguished.

Muhammad Hashim Laghari for Applicant.

YLR 2022 KARACHI HIGH COURT SINDH 1837 #

2022 Y L R 1837

[Sindh]

Before Mohammad Karim Khan Agha and Kausar Sultana Hussain, JJ

MOHAMMAD SHOAIB alias SHAHOO and others---Appellants

Versus

The STATE---Respondent

Special Criminal A.T.As. Nos. 62 and 63 of 2021, decided on 16th November, 2021.

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

----Ss. 302 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S. 103---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt--- Defective investigation---Scope---Accused were charged for making firing upon the police party, due to which one Police Constable was hit and died, whereas one bullet hit at the side door of the official mobile---Investigating Officer after completion of investigation had submitted challan under "A" Class as no one could be arrested by the Investigating Officer at that time (2011)---Investigating Officer deposed that he was Investigation Officer of FIR and during search of the accused of that crime, on receiving spy information about presence of accused of that FIR they arrested accused in presence of Head Constable, who admitted their guilt before police---Investigating Officer did not make efforts to get his confessional statement recorded before Judicial Magistrate as provided in law under S.164, Cr.P.C., in order to prove that crime against him on merits by adopting legal process but instead brought unauthentic, inadmissible and unrecognized evidence on record---Circumstances established that the prosecution failed to prove its case beyond shadow of doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

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

----Ss. 302 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Test identification parade---Infirmities---Accused were charged for making firing upon the police party, due to which one Police Constable was hit and died, whereas one bullet hit at the side door of the official mobile---Record showed that Judicial Magistrate conducted Identification Parade of accused persons through Head Constable and Police Constable, who did not identify co-accused, however, they identified accused during Identification Parade---Police Constable had assigned role to accused while conducting his Identification Parade that he was present with 10/12 persons, who were burning tyres---Said witness did not state about making fires by the accused upon the police party on the day of incident---Said witness deposed in his examination in chief that in retaliation of firing by miscreants upon police party he also opened three or four fires upon them from MG allotted to Head Constable---During cross-examination, said witness admitted that he was not allotted official arms and ammunition because he was performing his duty on that day as driver of police mobile but made fires---Circumstances established that the prosecution failed to prove its case beyond shadow of doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

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

(e) 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.

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

----Ss. 302 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused were charged for making firing upon the police party, due to which one Police Constable was hit and died, whereas one bullet hit at the side door of the official mobile---Record showed that the evidence of witnesses was not confidence inspiring even eye-witnesses seemed not trust worthy and reliable, who in spite of passing a long period of more than six years to the incident only identified the accused and not the co-accused---No crime weapon was recovered from accused, no empty of crime weapon was secured from the place of incident---No role of causing fire upon the police party had been assigned by the eye-witness to the accused while identifying him during Identification Parade before Judicial Magistrate---Circumstances established that the prosecution failed to prove its case beyond shadow of doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

Wazeer v. The State 2020 PCr.LJ Note 188; Muhammad Noman and another v. The State 2020 PCr.LJ Note 174; Shah Faisal v. The State 2021 YLR 244; Afaq Ahmed v. The State 2020 YLR 676 and Wali Muhammad Rahimoon and another v. The State 2021 YLR 288 ref.

Khawaja Muhammad Azeem for Appellant (in Special Criminal A.T.A. No.62 of 2021).

Muhammad Iqbal Awan, Addl. P.G., Sindh for the State (in Special Criminal A.T.As. Nos.62 and 63 of 2021).

Mushtaq Ahmed Jehangiri for Appellant (in Special Criminal A.T.A. No.63 of 2021).

YLR 2022 KARACHI HIGH COURT SINDH 1855 #

2022 Y L R 1855

[Sindh]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

RAJESH alias RAJU---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.702 and Confirmation Case No. 32 of 2019, decided on 8th March, 2021.

(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 the deceased in a hospital---Owner of the hospital and CCTV operator/witnesses had clearly stated that they had identified the accused in CCTV footage while causing knife blows to the deceased, in the hospital---Accused was sweeper in the said hospital and deceased was receptionist/dispenser in the said hospital---Said witnesses knew the accused---Evidence of one of the witnesses, CCTV operator of the hospital was quite reliable and trustworthy---Said witness had no motive to falsely implicate the accused in the murder of the deceased---Evidence of CCTV operator and owner of the hospital was quite reliable and beyond any doubt---Evidence of Medical Officer, who produced the post-mortem report, fully supported the prosecution case---Chain of circumstantial evidence, including the recovery of churri, positive reports of the Chemical Examiner was firmed and continuous, leaving no margin for the hypothesis of the innocence of the accused---Prosecution had thus proved its case against the accused beyond reasonable doubt, however, due to mitigating circumstances, death sentence was reduced to imprisonment for life---Appeal against conviction was dismissed with said modification in sentence.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---CCTV footage---Scope---Accused was charged for committing murder of the deceased in a hospital---Accuracy of recording of CCTV footage in the hospital had been proved through the evidence of CCTV operator, he was the person who was monitoring the CCTV footage in the hospital---Video was played before the Trial Court, accused was visible in the video, he was identified by the owner of the hospital and CCTV operator/witnesses as the accused was sanitary worker in the hospital---Safe custody of the CCTV footage after its preparation till production before the trial court had been proved---CCTV footage could safely be relied against the accused---Not a single question had been put by the defence to the prosecution witnesses regarding tampering with the USB---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, due to mitigating circumstances, death sentence was reduced to imprisonment for life---Appeal against conviction was dismissed with said modification in sentence.

----S. 302(b)---Qatl-i-amd---Appreciation of evidence--- Weapon of offence (churri) was recovered--- Reliance--- Scope---Accused was charged for committing murder of the deceased in a hospital---Owner of the hospital had also watched the CCTV footage and identified the accused, causing churri blows to the deceased--- Medical evidence corroborated the CCTV footage evidence---Churri used in the commission of offence was voluntarily produced by the accused from the corner of water tank on third floor of the hospital---Said churri was bloodstained and report of the Chemical Examiner was positive---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, due to mitigating circumstances, death sentence was reduced to imprisonment for life---Appeal against conviction was dismissed with said modification in sentence.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances--- Scope---Accused was charged for committing murder of the deceased in a hospital---Prosecution had failed to prove the motive at the trial---In the FIR, motive had not set up but during investigation, Investigating Officer interrogated the accused and collected the material that the accused had committed the murder of the deceased because the accused had got the ATM card of the deceased secretly and used it unauthorizedly and had withdrawn an amount of Rs.21,000/-from the account of the deceased by means of ATM card---In order to substantiate said fact at trial, prosecution had failed to collect the independent piece of evidence to prove the motive at trial---Bank Manager/witness was examined by the prosecution and he deposed that Bank Manager of other branch had provided him footage of the ATM machine room, when the same was played before the Trial Court, picture of user was not visible---ATM card of the deceased was also used---Nothing on record as to how the accused came to know about the valid PIN number of the ATM Card of the deceased---Investigating Officer could not recover the ATM Card of the deceased from the possession of the accused but stated that it was thrown by the accused in the gutter---Said piece of evidence/recovery had not been established at trial by cogent and confidence inspiring evidence---Investigating Officer had also failed to interrogate/investigate the accused with regard to the use of amount of Rs.21,000/-allegedly withdrawn by the accused from the account of the deceased by means of ATM Card---Such fact constituted mitigating circumstances, thus death sentence was reduced to imprisonment for life---Appeal against conviction was dismissed with said modification in sentence.

(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 react against a sentence of death passed against a convict on the charge of murder.

Mst. Nazia Anwar v. The State and others 2018 SCMR 911; 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.

Abdul Raheem for Appellant.

Mohammad Iqbal Awan, Deputy Prosecutor General for the State.

Ghulam Murtaza Channa for the Complainant.

YLR 2022 KARACHI HIGH COURT SINDH 1907 #

2022 Y L R 1907

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

QURBAN ALI BULLAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.S-123 of 2010, decided on 8th November, 2021.

(a) 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 along with co-accused committed murder of the son of the complainant by firing---Oral evidence given by the two eye-witnesses supported the case of prosecution, they 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, as per medical evidence produced by the prosecution while examining by the Medical Officer who conducted the post-mortem of the deceased, deceased received three separate firearm injuries and as per the opinion of the Medical Officer all injuries were anti-mortem---All the witnesses denied direct enmity with the accused during their cross-examination and deposed that they had no enmity with the accused---Although the complainant was not examined as he during the trial passed away---First Information Report was exhibited by the witness and he also stated that the contents of the FIR were read over to complainant who after accepting correct had signed on it---Besides the said witness the prosecution examined two other eye-witnesses who fully supported the case---Circumstances established that the prosecution had proved its case beyond a reasonable doubt---Appeal was dismissed accordingly.

Muhammad Shah v. The State SCMR 1009; Anwar Shamim and another v. The State 2010 SCMR 1791; Gulraiz Akhtar and others v. The State 2009 SCMR 493; Muhammad Talha Hussain alias Noman and another v. The State PLD 2008 SC 115; Khan alias Khani and another v. The State 2006 SCMR 1744; Wilayat Ali v. The State and another 2004 SCMR 477; Abdul Rauf v. The State and another 2003 SCMR 522; Allah Bakhsh v.The State 2002 SCMR 1260; Dr. Javaid Akhtar v. The State PLD 2007 SC 249; Waris Hussain Shah v. Abid Hussain Shah and 3 others 2001 PCr.LJ 268; Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 524; Shabbir Ahmed and another v. The State and others 1997 PCr.LJ 1539; S.A.K Rehmani v. The State 2005 SCMR 364; Haroan Rasheed and 5 others v. The State and another 2005 SCMR 1568; Sikandar Teghani alias Muhammad Bux Teghani v. The State 2016 YLR 1098; Qamar-uz-Zaman alias Kala v. The State 2011 SCMR 856; Saeed Khan and 5 others v. The State and another 2008 SCMR 849; Muhammad Latif alias Tifa v. The State 2008 SCMR 1106; Nawab Ali v. The State 2014 PCr.LJ 885; Ghulam Rasool Shah v. The State PLJ 2009 Sh.C.(AJ&K) 600; Tanveer Ahmad and another v. The State and another PLJ 2009 Sh.C. (AJ&K) 89; Muhammad Hanif Khan and another v. The State and another 2001 PCr.LJ 827; Qaddan and others v. The State 2017 SCMR 148; Allah Bakhsh v. Shammi and others PLD 1980 SC 225; Behram v. The State 2015 YLR 150; Muhammad Faryad v. The State 2010 SCMR 166 and Mobashar Ahmed v. The State 2009 SCMR 1133 ref.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---FIR was lodged with promptitude---Scope---Accused was charged that he along with his co-accused committed murder of the son of the complainant by firing---First Information Report was registered promptly---Incident took place on 25-04-2003 at 12.30 in the night, FIR was registered on the same day at 0200 hours and the post-mortem of the deceased was conducted at 2:30 am on 25-04-2003, which excluded the possibility of consultation or deliberation on the part of the prosecution---Evidence established that after the incident complainant immediately went to the police station by leaving other two witnesses at hospital with the dead body and after the FIR police along with the complainant came at the hospital and then at place of vardat---Circumstances established that the prosecution had proved its case beyond a reasonable doubt---Appeal was dismissed accordingly.

Farman Ali and another v. The State and another 2020 SCMR 597 rel.

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Related and interested witnesses---Reliance---Scope---Accused was charged that he along with his co-accused committed murder of the son of the complainant by firing---Allegedly, the witnesses were relative to the deceased and were interested, therefore their evidence could not be relied upon had no force as although the witnesses were relative to the complainant and the deceased but they had no enmity with the accused to involve him in the murder case---Evidence produced by the prosecution was reliable, trustworthy and confidence inspiring which was supported by the medical evidence---Circumstances established that the prosecution had proved its case beyond a reasonable doubt---Appeal was dismissed accordingly.

Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152 and Lal Khan v. State 2006 SCMR 1846 rel.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, common intention---Appreciation of evidence---Material not put to the accused while recording his statement---Scope---Accused was charged that he along with his co-accused committed murder of the son of the complainant by firing---Contentions in respect of the fact that the empties recovered from the place of incident and the positive Forensic Science Laboratory was not put to the accused in his statement recorded under S.342, Cr.P.C., were not to be used against him nor did the same was to be taken into consideration for awarding conviction had some weight---In the present case if the recovery of said three empties along with the positive Forensic Science Laboratory be discarded even then there was sufficient/strong evidence against the accused which connected him with the commission of offence---Presence of the accused at the place of vardat on his official duty had not been denied---Issuance of SMG to accused along with 30 rounds had not been denied and depositing only 27 rounds out of 30 had also not been denied by the accused during the investigation so also at the time of trial---Circumstances established that the prosecution had proved its case beyond a reasonable doubt---Appeal was dismissed accordingly.

Muhammad Shah v. The State 20010 SCMR 1009 rel.

(e) Criminal trial---

----Witness---Minor contradictions and discrepancies in the evidence of witnesses---Scope---Where in the evidence, prosecution established its case beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence supported by other viz medical and circumstantial evidence then if there might some minor contradictions which always were available in each and every case such might be ignored.

Zakir Khan v. The State I995 SCMR 793 rel.

A. R. Faruq Pirzada for Appellant.

Nasrullah Korai for the Complainant.

Syed Sardar Ali Shah Rizvi, Deputy Prosecutor General for the State.

YLR 2022 KARACHI HIGH COURT SINDH 1960 #

2022 Y L R 1960

[Sindh]

Before Muhammad Saleem Jessar, J

KASHIF ALI alias MOJ---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.805 of 2019, decided on 4th October, 2021.

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

----Ss.302(b), 324, 353, 392, 397 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, robbery or dacoity with attempt to cause death, common intention---Appreciation of evidence---Accused was charged that he along with his co-accused committed murder of the brother of the complainant while looting the complainant party, accused was apprehended at the spot---Complainant identified the accused, who was present in court, to be the same person who fired upon his brother, due to which he died, so also accused who ran away from the spot---Evidence of Head Constable was of worth importance---Said witness deposed that he along with Police Constable left police station for patrolling and when they reached at main road, they saw that two persons were coming on motorcycle and the people were chasing them---Both the accused persons were firing on them and on the voice of firing, they also chased them---When they reached near accused persons, they also started firing on police---Police also fired in self-defence---Subsequently, one accused was caught hold by them with the help of people, whereas another accused ran away from the spot---Said witness personally searched the accused and recovered one T.T. pistol along with one live bullet, cash, mobile and motorcycle from his possession---Another witness deposed that at 04.45 p.m. he was sitting in his Mohallah, meanwhile he heard the cries of dakoo dakoo---Said witness stated that he had seen that people were running and he followed them---During chasing the culprits, when they reached at main road, one dacoit fired from his pistol which hit on the chest of deceased, the brother of complainant---On commotion of firing, the police also reached there---Police also fired in the air and also apprehended accused---On personal search of apprehended accused, police recovered one pistol along with magazine containing one live bullet, one mobile and Rs. 200 from his possession---From the evidence of said alleged eye-witnesses of the case, it was apparent that they had fully implicated the accused in the commission of the alleged offence---From minute scrutiny of their evidence, it appeared that their evidence was consistent with each other on all material aspects/points---All of them were firm and unanimous on all material events and no such flexibility or any material lacuna in their evidence found which could damage/destroy the case of the prosecution---Circumstances established that prosecution had succeeded in proving its case against accused beyond shadow of any reasonable doubt---Appeal against conviction was dismissed accordingly.

Allah Ditta v. The State and another 2019 PCr.LJ 172; Sikandar alias Sani v. The State 2018 MLD 1220 and Muhammad Sarwar v. The State 1999 SCMR 2428 ref.

(b) Criminal trial---

----Witness---Minor contradictions in the statements of witnesses---Scope---Minor contradictions in the evidence of the prosecution witnesses could not be made the basis for acquittal of the accused if otherwise on material aspects the witnesses had corroborated each other.

Mohammad Ilyas v. The State 2011 SCMR 460 rel.

1995 SCMR 1793 and 2007 SCMR 641 rel.

(d) Criminal trial---

----Witness---Related and interested witness--- Reliance--- Scope--- Mere relationship of the witnesses with the complainant party would not render their evidence unreliable unless it was established that he had some motive to implicate the accused falsely in the case.

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

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

Hashim Qasim v. The State 2017 SCMR 986 and Tasar Mahmood and another v. The State and another in 2020 SCMR 1013 rel.

Mohammad Hanif Noonari for Appellant.

Talib Ali Memon, Assistant Prosecutor General for the State.

YLR 2022 KARACHI HIGH COURT SINDH 2034 #

2022 Y L R 2034

[Sindh (Larkana Bench)]

Before Naimatullah Phulpoto, J

SAFEER alias ALI DINO and another---Petitioners

Versus

The STATE---Respondent

Criminal Appeals Nos. S-148 and S-149 of 2019, decided on 4th December, 2020.

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

----S.23(1)A---Possessing illicit weapon---Appreciation of evidence---Benefit of doubt---Prosecution case was that pistols with magazine containing bullets were recovered from the possession of accused---Record reflected that the accused had been acquitted in the main case under Ss.302, 452 & 34, P.P.C. by Trial Court, mainly on the ground that eye-witnesses did not support the prosecution case---Evidence of mashir was recorded before the Trial Court in the main case, in which he had categorically stated that neither accused were arrested in his presence nor pistols were recovered from their possession---Trial Court had failed to record evidence in both the cases separately---Evidence of the prosecution witnesses was recorded in one case and same was copied/ditto typed in another case---Requirement of the law was that evidence in every case was to be recorded separately---Procedure adopted by the Trial Court was absolutely illegal and unwarranted by law---According to the case of prosecution, both pistols were used by the accused in the commission of the murder---Despite that, it was very strange that prosecution failed to produce the evidence with regard to the safe custody of the weapons at the police station and safe transmission to the Ballistic Expert---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.

Hamza Ali Hamza v. The State 2010 SCMR 1219 and Faheem Ali v. The State 2019 MLD 468 ref.

Kamal Din alias Kamala v. The State 2018 SCMR 577 rel.

(b) Criminal trial---

----Benefit of doubt---Principle---If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then the accused will be entitled to the benefit of such doubt not as a matter of grace and concession but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Muhammad Akram v. The State 2009 SCMR 230; Muhammad Zaman v. The State 2014 SCMR 749 and Muhammad Mansha v. The State 2018 SCMR 772 rel.

Ahmed Bux Abro for Appellants (in both appeals).

Aitbar Ali Bullo, Deputy Prosecutor General for the State.

YLR 2022 KARACHI HIGH COURT SINDH 2047 #

2022 Y L R 2047

[Sindh (Larkana Bench)]

Before Zafar Ahmed Rajput and Adnan-ul-Karim Memon, JJ

ALLAHDAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-45 of 2020, decided on 13th July, 2021.

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

----S. 9(c)---Possession of charas---Appreciation of evidence---Benefit of doubt--- Prosecution case was that accused was arrested by the police from a passenger van on being found in possession of 4000 grams charas---Record showed that the complainant had not mentioned the registration number of the van and name of its driver in memo of arrest and recovery and FIR---Complainant and Investigating Officer had failed to obtain and produce the copies of the registration book and route permit of the alleged van to establish that the alleged wagon was in fact plied on the pointed route, which was in fact matter of great importance in view of the admission of said complainant in his cross-examination that no van directly ran from said route---Investigating Officer had not recorded the statement of the driver of the van under S.161, Cr.P.C.---Driver of the van was an important witness of the prosecution to establish that the accused was in fact travelling through his van, hence, he should have been joined in investigation---Prosecution, therefore, was not able to prove the existence and presence of alleged van and also the fact of its stoppage on the scene of occurrence, as well as the travelling of the accused in the van, if it existed at the date and time mentioned by the prosecution---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Possession of charas---Appreciation of evidence---Benefit of doubt---Non-production of record of daily diary and Register No.19---Scope---Prosecution case was that accused was arrested by the police from a passenger van on being found in possession of 4000 grams charas---Prosecution had not produced on record the certified copies of the original daily diary entries and entry of original Malkhana Register No.19---Departure Entry and arrival Entry of complainant, departure entry of recovery witness, departure entry of Investigating Officer entry whereby said Investigating Officer allegedly handed over the case property to WHC and entry in Register No.19 all were uncertified and hand written entries on plain papers---Even latter two entries were undated---Record did not reflect that original daily diary register and register No. 19 were produced for the examination of the Trial Court at the time of recording evidence of witnesses---No credibility could be attached to the said documents---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

----S. 9(c)---Possession of charas---Appreciation of evidence---Benefit of doubt---Safe transmission of recovered substance from police station to Forensic Science Laboratory for analysis---Scope---Prosecution case was that accused was arrested by the police from a passenger van on being found in possession of 4000 grams charas---Prosecution had failed to prove the safe custody of the recovered charas and its safe transmission to Chemical Examiner---Recovery of charas was allegedly effected on 09.09.2020 and the samples were sent for chemical analysis on 11.09.2020, however, it was not known as to where and in whose possession the alleged samples were kept during intervening period---Investigating Officer had deposed that he handed over the case property to WHC to keep it in safe custody---Said WHC had not been examined by the prosecution, therefore, no evidence was available on record to prove the safe custody of the recovered substance at the police station and its safe transmission from said place to the office of Chemical Examiner---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Abdul Ghani and others v. The State and others 2019 SCMR 608; Faizan Ali v. The State 2019 SCMR 1649; The State through Regional Director ANF v. Imam Bukhsh and others 2018 SCMR 2039; Ikramullah and others v. The State 2015 SCMR 1002 and Amjad Ali v. The State 2012 SCMR 577 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---If doubt even slightest arisen in a prudent mind as to the guilt of the accused, benefit of the same had to be extended in favour of the accused.

Mazhar Ali Bhutto for Appellant.

Aitbar Ali Bullo, Deputy Prosecutor General, Sindh for the State.

YLR 2022 KARACHI HIGH COURT SINDH 2095 #

2022 Y L R 2095

[Sindh]

Before Omar Sial, J

DEWAN ABDULLAH AHMED FAROOQUI---Petitioner

Versus

COURT OF FAMILY JUDGE SOUTH, SADDAR KARACHI and another---Respondents

Constitutional Petition No. S-784 of 2021, decided on 6th January, 2022.

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

----S.7---Custody of minor---Principles---Decisions in custody cases have to be guarded by welfare principle i.e. welfare of minor---No set formula to determine existed as to what constitutes welfare of the child.

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

----S. 7---Civil Procedure Code (V of 1908), S. 11---Constitution of Pakistan, Art. 199---Constitutional petition---Res judicata, principle of---Applicability ---Custody of minors---Dispute between the parties was with regard to application regarding custody of minor daughters pending before Family Court---Petitioner sought dismissal of custody application on the principle of res judicate, as earlier custody application had already been dismissed---Family Court dismissed application of petitioner---Validity---Welfare of child in custody cases, was of paramount consideration---Order of custody of a child was not one of permanent nature--- Change in circumstances or new grounds that could have arisen with the passage of time could necessitate revisiting earlier order for custody---Second, application was not barred in such circumstances---Earlier order for custody was to be given due weight and importance while deciding second application---Physical, emotional and psychological growth of child could be considered as change of circumstances---No definitive age could be stated at which child was able to express his or her preference in a custody case---Just because a child preferred to stay with one parent or the other did not mean that such wish must necessarily be exceeded to---Child in adolescence could be motivated by desires that may not be in their better interest---Court was to determine if child was mature enough to express his or her preferences as well as could determine intent and reasoning behind its preferences---New grounds, like children were substantially older, remarriage of father, departure of one child and allegations as well as allegations of increased abuse, necessitated that Family Court to examine such issues based on evidence to support such allegations---Children must be given an opportunity to express themselves---High Court declined to interfere in the order passed by Family Court regarding rejecting plea of principle of res judicata---Constitutional petition was dismissed, in circumstances.

Ihsan-ur-Rehman v. Najma Parveen PLD 1968 SC 14; Malik Khizar Hayat Khan and another v. Zainab Begum and others PLD 1967 SC 402; Shabana Kausar v. District Judge and others 2020 CLC 2099; Mohammad Islam v. Rashida Sultana and 4 others 2013 CLC 698; Ayesha Tahir Shafiq v. Saad Anamullah Khan and 2 others PLD 2001 Kar. 371 and Sultana Begum v. Muhammad Shafi PLD 1965 (W.P.) Kar. 416 ref.

Farjad Ali Khan for Petitioner.

Ms. Sara Malkani for Respondent No. 2.

YLR 2022 KARACHI HIGH COURT SINDH 2117 #

2022 Y L R 2117

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Zulfiqar Ahmad Khan, JJ.

ABDUL NASIR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-147 of 2021, decided on 22nd March, 2022.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 103---Possession of Narcotics---Appreciation of evidence---Non-association of private witnesses in recovery proceeding---Scope---Prosecution case was that three kilograms of charas was recovered from the possession of accused---Record showed that it was the case of spy information when complainant /ASI had sufficient time to call the independent persons of the locality to witness the recovery proceedings but it was not done---Cross-examination of complainant showed that there was Madarassa nearby the place of arrest and recovery and there were also some villages of Baloch community around the place of arrest and recovery, hence the question arose when the private persons were available at the spot, why the police party did not join them as recovery witness---Provisions of S. 103, Cr.P.C. were not attracted to the cases of personal search of the accused in such like cases, where alleged recovery was made on a road and the people were available there, omission to secure independent mashirs, particularly, in the case of spy information could not be brushed aside lightly---Prime object of S.103, Cr.P.C., was to ensure transparency and fairness on the part of police during course of recovery, curbed false implication and minimize the scope of foisting of fake recovery upon accused---No explanation was on record as to why the independent witnesses were not associated in the recovery proceedings---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal was allowed, in circumstances and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

Tariq Pervez v. The State 1995 SCMR 1345 and Ikramullah and others v. The State 2015 SCMR 1002 ref.

(b) Criminal trial---

----Witness---Testimony of police officials--- Scope--- No doubt police witnesses are as good as other independent witnesses and conviction could be recorded on their evidence, but their testimony should be reliable, dependable, trustworthy and confidence worthy and if such qualities are missing in their evidence, no conviction could be passed on the basis of evidence of police witnesses.

----S. 9(c)---Possession of Narcotics---Appreciation of evidence---Safe custody of charas and its transmission to the laboratory was doubtful---Scope---Prosecution case was that three kilograms charas was recovered from the possession of accused---Record showed that there was no mention in the FIR as to how the alleged charas recovered from the accused was weighed---No customer was found at the place of incident though it was the case of prosecution that accused was openly selling charas over there---Furthermore, as per available record, accused had no previous criminal record and the accused did not make any effort to run away from the place of incident---After recovery of charas from the accused, it was sent to the Chemical Examiner after five days and safe custody of the charas at Malkhana and its safe transit had not been established at trial---No corroboration in the evidence of prosecution witnesses was found---Matter of record was that the charas was recovered from possession of accused and was kept in Malkhana but it had not been proved that it was a safe transit case---Prosecution evidence in respect of accused was without independent corroboration---Prosecution had failed to prove that the charas was in safe custody---Even positive report of the Chemical Examiner would not prove the case of prosecution marred with unexplained delay--- Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal was allowed, in circumstances and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

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

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 342---Possession of Narcotics---Appreciation of evidence---Defence plea---Scope---Prosecution case was that three kilograms of charas was recovered from the possession of accused---Accused in his statement recorded under S. 342, Cr.P.C., had taken the plea that he had been falsely implicated in the case by the police on account of his enmity with his community people---In that regard accused had also annexed the copies of two FIRs to strengthen his plea---All the said factors suggested the false implication of accused in the case, which could not be ruled out---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal was allowed, in circumstances and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

(e) Criminal trial---

----Benefit of doubt---Principle---Not necessary that there should be many circumstances creating doubts---If there was a single circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right.

Tariq Parvez v. The State 1995 SCMR 1345 rel.

Ayaz Hussain Tunio for Appellant.

Shewak Rathore, D.P.G. for the State.

YLR 2022 KARACHI HIGH COURT SINDH 2138 #

2022 Y L R 2138

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan and Muhammad Saleem Jessar, JJ

ZAFAR AHMED ASHARAFI and another---Petitioners

Versus

SENIOR MEMBERm BOARD OF REVENUE, SINDH and 7 others---Respondents

Constitutional Petition No. D-89 of 2020, decided on 2nd June, 2021.

Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S.3---Sindh Land Revenue Act (XVII of 1967), S.172---Constitution of Pakistan, Art. 199---Constitutional petition---Evacuee property---Remedy of appeal---Scope---Civil Court, jurisdiction of---Correction of entry in record of rights, periodical record or register of mutations---Subject matter of petition was evacuee property in respect of which order in question was passed by Board of Revenue---Validity---Board of Revenue was not competent to hear appeal under Settlement Laws as the law was repealed on 28-1-1975---After repeal only Civil Court was competent to hear and decide cases under Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975---Respondent after repeal of Settlement Laws approached Civil Court through a civil suit which was allowed in revisional jurisdiction and Constitutional petition against such order was dismissed by High Court---Such order passed by High Court was maintained up to Supreme Court and proceedings had attained finality before Civil Court---Once a person had approached Civil Court, under S.172(2) of Sindh Land Revenue Act, 1967, the Revenue Courts were restrained---Even under S.9, C.P.C., Civil Court was Court of ultimate jurisdiction and Board of Revenue had no authority to pass any order under Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975---Revenue authority had rightly passed order under S.172(vi) of Sindh Land Revenue Act, 1967, correcting entry in record of rights, periodical record or register of mutations, as the same was under his ambit---High Court set aside order passed by Board of Revenue---Constitutional petition was allowed, in circumstances.

1997 SCMR 1840; 2000 CLC 685 and PLD 1984 Kar. 62 rel.

Irfan Ahmed Qureshi for Petitioners.

Ms. Fatima Zahara Ahsari for Respondent No.8.

YLR 2022 KARACHI HIGH COURT SINDH 2163 #

2022 Y L R 2163

[Sindh]

Before Mohammad Karim Khan Agha and Kausar Sultana Hussain, JJ

MUHAMMAD REHAN---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 4, 5 and Criminal Revision Application No. 36 of 2019, decided on 30th November, 2021.

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

----Ss. 302(b), 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism---Appreciation of evidence---Prosecution case was that the police party tried to stop the motorcycle riders on suspicion of having committed crimes, accused started firing upon the police party with intention to commit their murder, as a result of which, Police Constable was hit and died, police also made firing in retaliation---Complainant was eye-witness and had furnished the ocular account of the incident---Eye-witness lodged the FIR with promptitude where he specifically narrated the incident---Eye-witness had made no material improvements in his evidence from his FIR which was lodged on behalf of the State---Said witness was not a chance witness as he was a uniformed Police Officer on patrol in the area with the deceased (official) on a motor bike performing his official duties---Complainant was not related to the deceased and had no ill will or enmity with the accused in order to implicate him in a false case---Complainant was present at the scene during the incident---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal was dismissed accordingly.

Muhammad Umar and Muhammad Fazil alias Rana v. The State bearing Special Criminal Anti-Terrorism Appeals Nos. 213 to 216 of 2016; (Confirmation Case No.05 of 2016) dated 16.05.2019; Mian Sohail Ahmed and others v. The State and others 2019 SCMR 956; Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Javed Khan alias Bacha and another v. The State 2017 SCMR 524; Ihsan Ullah and others v. The State and others 2021 PCr.LJ 1470; Liaqat Ali and others v. The State and others 2021 SCMR 455; Tariq Pervez v. The State 1995 SCMR 1345; Syed Mehroz Mehdi Zaidi v. The State 2020 PCr.LJ 1609; Irfan alias Shani v. The State and another 2020 YLR 372; Khalil Ahmed and another v. The State and another 2021 PCr.LJ 1424; Imran v. The State through VIIth Anti-Terrorism Court inside Central Prison, at Karachi 2021 P Cr.LJ 1384; Muhammad Yaqoob v. The State 2021 SCMR 1387; Muhammad Ehsan v. The State 2006 SCMR 1857 and Abdul Majeed v. The State 2008 SCMR 1228 ref.

Muhammad Zaman v. The State 2007 SCMR 813 rel.

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

----Ss. 302(b), 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art.22---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism---Appreciation of evidence---Test identification parade---Scope---Prosecution case was that the police party tried to stop the motorcycle riders due to suspicion of having committed crimes, accused started firing upon the police party with intention to commit their murder, as a result of which, Police Constable was hit and died, police also made firing in retaliation---Eye-witness picked out the accused at an identity parade only two weeks after the incident and within one week of the arrest of accused with a specific role---Slight delay in the identification parade was not of much consequence---Identification parade was also carried out in accordance with law and the factum of the eye-witness picking out the accused at the identification parade with the specific role of shooting the deceased was corroborated by Judicial Magistrate who carried out the identification parade along with his memo of identification who was honest enough in his evidence to record complaints made by the accused at the time of the identification parade---Evidence of the eye-witness was found to be reliable, trustworthy and confidence inspiring and believable especially with regard to the correct identification of the accused---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal was dismissed accordingly.

Muhammad Ehsan v. The State 2006 SCMR 1857; Farooq Khan v. The State 2008 SCMR 917 and Niaz-ud-Din and another v. The State and another 2011 SCMR 725 rel.

----Ss. 302(b), 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism---Appreciation of evidence---Medical evidence---Scope---Prosecution case was that the police party tried to stop the motorcycle riders due to suspicion of having committed crimes, accused started firing upon the police party with intention to commit their murder, as a result of which, Police Constable was hit and died, police also made firing in retaliation---Record showed that the medical evidence and medical reports fully supported the eye-witness/prosecution evidence---Medical evidence confirmed that the deceased was brought to the hospital suffering from one firearm injury on the neck---No blackening around the wound also supported the prosecution case that the firing was from about 5 to 6 feet after the motor bike which the accused was riding had been signalled to stop---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal was dismissed accordingly.

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

----Ss. 302(b), 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism---Appreciation of evidence---Weapon of offence and crime empties were recovered--- Reliance--- Scope---Prosecution case was that the police party tried to stop the motorcycle riders due to suspicion of having committed crimes, accused started firing upon the police party with intention to commit their murder, as a result of which, Police Constable was hit and died, police also made firing in retaliation---Accused took the police to the secret place where he had hidden the pistol which was the murder weapon which only he could have known about and for which he did not have a licence---Empty recovered at the wardat straight after the incident when matched with the pistol recovered by the accused on his pointation led to a positive Forensic Laboratory Report---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal was dismissed accordingly.

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

----Ss. 302(b), 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism---Appreciation of evidence---Minor contradictions--- Scope---Prosecution case was that the police party tried to stop the motorcycle riders due to suspicion of having committed crimes, accused started firing upon the police party with intention to commit their murder, as a result of which, Police Constable was hit and died, police also made firing in retaliation---All the witnesses were consistent in their evidence---Even if there were some contradictions in their evidence, same 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---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal was dismissed accordingly.

Zakir Khan v. State 1995 SCMR 1793 and Khadim Hussain v. The State PLD 2010 SC 669 rel.

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

----Ss. 302(b), 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism---Appreciation of evidence---Unbroken chain of events---Scope---Prosecution case was that the police party tried to stop the motorcycle riders due to suspicion of having committed crimes, accused started firing upon the police party with intention to commit their murder, as a result of which, Police Constable was hit and died, police also made firing in retaliation---Evidence of the witnesses provided a believable corroborated unbroken chain of events from complainant asking the accused to stop their motor bike to the accused firing at the deceased to complainant returning fire to the death of the deceased to the arrest of the accused to the recovery of the pistol on the pointation of the accused to the positive Forensic Laboratory Report---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal was dismissed accordingly.

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

----Ss. 302(b), 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism---Appreciation of evidence---Police witnesses---Scope---Prosecution case was that the police party tried to stop the motorcycle riders due to suspicion of having committed crimes, accused started firing upon the police party with intention to commit their murder, as a result of which, Police Constable was hit and died, police also made firing in retaliation---In the present case, the police witnesses had no enmity or ill-will towards the accused and had no reason to falsely implicate him in the case by making up his arrest or foisting the pistol on him---Evidence of the witnesses could be fully relied upon---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal was dismissed accordingly.

Mushtaq Ahmed v. The State 2020 SCMR 474 rel.

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

Mallag Assa Dashti for Appellant (in both Appeals).

Muhammad Iqbal Awan, Additional Prosecutor General, Sindh for the State (in Sp. Cr. Anti-Terrorism Appeals Nos. 4 and 5 of 2019).

Muhammad Iqbal Awan, Additional Prosecutor General, Sindh for Applicant/State (in Criminal Revision Application No. 36 of 2019).

Mallag Assa Dashti for Respondent (in Criminal Revision Application No. 36 of 2019).

YLR 2022 KARACHI HIGH COURT SINDH 2180 #

2022 Y L R 2180

[Sindh]

Before Muhammad Shafi Siddiqui, J

Syed MUHAMMAD---Petitioner

Versus

NOORULLAH and others---Respondents

C. Ps. Nos. 2695 to 2699 of 2017, decided on 8th April, 2021.

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

----Ss. 15 & 18---Eviction petition---Change in ownership--- Scope---Respondent / landlord filed eviction applications in respect of five tenements in use of petitioner/tenant on the ground of default after service of notice under S.18---Rent Controller and Appellate Court concurrently ordered eviction of tenant---Tenant denied the relationship of landlord and tenant---Validity---Tenant had claimed to have purchased the property but nothing was brought on record in that respect---Tenant had already conceded in his written statement that he was inducted in the premises as tenant, which was a crucial statement---Tenant had admitted in his cross-examination that despite his coming to know about issuance of PT-1 (Property Tax-1) in the name of landlord, he had not initiated any legal proceedings---PT-1 issued to the predecessor of landlord was available along with affidavit-in-evidence---PT-1 might not constitute ownership but it did authorize the one who was found in constructive possession to regulate his possession as required under the law---PT-1 had authorized the landlord to deal with the property as he deemed fit and proper---Notice under S. 18 of the Sindh Rented Premises Ordinance, 1979, was issued to the tenant to apprise him about the situation as to the change of PT-1 and authority of new landlord---Landlord had stepped into the shoes of previous landlord to whom PT-1 was issued---Impugned judgments did not call for interference---Constitutional petitions were dismissed.

AIR 2011 SC 3774 and AIR 2003 SC 3542 rel.

Haji Faqir Muhammad's case 1989 CLC 252; Mst. Parveen Bibi's case 2007 CLC 1106; Muhammad Naeem's case 1999 MLD 1342; Haji Mohammad Ramzan's case Mian Muhammad Amin's case PLD 1967 Pesh. 380; 1982 CLC 1770 and Saleh Muhammad's case 1984 CLC 916 ref.

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

----Ss. 15 & 2(f)---Eviction application---"Landlord"---Scope---Proceedings under S. 15 of Sindh Rented Premises Ordinance, 1979, at least to the extent of grounds other than personal requirement can be maintained by a "landlord" who may not be the owner, in terms of S. 2(f)---Section 2(f) of Sindh Rented Premises Ordinance, 1979 provides that landlord means owner of the premises and includes person who is for the time being authorized or entitled to receive the rent in respect of such premises---Section 15 of the Sindh Rented Premises Ordinance, 1979, uses the word "landlord" for the person who seeks eviction of tenant and is eligible to make application to the Controller---Rent Controller is under the obligation to direct the tenant to put the landlord in possession of the premises, as provided in different sub-clauses of subsection (2) of S. 15 except however if it is a case of personal requirement---Landlord need not necessarily be the owner of the premises for maintaining such application, he can be a person who is authorized and entitled under the law to receive the rent in respect of the premises.

----Ss. 18 & 15---Eviction application---Change in ownership---Scope---Even if for any reason a notice under S. 18 of Sindh Rented Premises Ordinance, 1979 is not served, then service of notice of the ejectment application itself is sufficient to apprise him about the fact of change of ownership.

Rehman Aziz Malik for Petitioner (in all Petitions).

Nemo. for Respondents.

YLR 2022 KARACHI HIGH COURT SINDH 2188 #

2022 Y L R 2188

[Sindh]

Before Adnan Iqbal Chaudhry, J

Messrs KAIM KHANI AND BROTHERS through Managing Partner---Plaintiff

Versus

PROVINCE OF SINDH through Secretary Higher Technical Education and Research and School Education Department and 4 others---Defendants

Suit No. 1731 of 2019, decided on 31st January, 2022.

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

----Ss. 42, 54 & 55---Civil Procedure Code (V of 1908), S. 20---Suit for declaration, permanent and mandatory injunction---Suits to be instituted where defendants reside or cause of action arises---Scope---Plaintiff filed suit for declaration, permanent and mandatory injunction claiming therein that despite having emerged as lowest bidder and having been issued tender documents, he was not being awarded contract by the defendants---Contention of defendants was that contract, if any, was to be awarded at district 'S', therefore, High Court had no jurisdiction to entertain the suit at district 'K'---Validity---Suit was to be instituted in a Court within the local limits of whose jurisdiction the cause of action, wholly or in part had arisen---Pre-qualification process had taken place at 'S', the tender documents were issued from and submitted to the procuring agency at 'S', the bids were opened at 'S' and the contract was to be awarded at 'S'---Dispute had no nexus with 'K'---Plaintiff argued that part of the cause of action had arisen at 'K' as a letter intimating the plaintiff that it had pre-qualified for the project was addressed to the plaintiff at 'K'---Mere letter addressed to the plaintiff at 'K', which was not an offer to a contract, was of no consequence---No part of the cause of action for the suit had arisen within the local limits of the High Court at 'K'---Civil Court at 'S' had territorial jurisdiction to entertain the suit---Plaint was returned.

Searle IV Solution (Pvt.) Ltd. v. Federation of Pakistan 2018 SCMR 1444 distinguished.

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

----Ss. 120, 16, 17 & 20---Provisions not applicable to High Court in original civil jurisdiction---Scope---Section 120, C.P.C. would be triggered only if the cause of action for a suit arises within the territorial limits of 'K' and the suit falls within the pecuniary jurisdiction of the High Court of Sindh at Karachi---If both of these pre-requisites are not met, then Ss. 16, 17 & 20, C.P.C. continue to hold the field.

Shamshad Begum v. Syed Iftikhar Hussain Jafri 2018 CLC 1795 and Land Mark Associates v. Sindh Industrial Trading Estate Ltd. 2018 YLR 2143 ref.

Muhammad Naveed Aslam v. Aisha Siddiqui 2011 CLC 1176 and Muhammad Naveed Aslam v. Aisha Siddiqui PLD 2010 Kar. 261 rel.

Ayan Mustafa Memon for Plaintiff.

Fayyaz Ali Metlo for Defendants Nos. 2 and 3.

YLR 2022 KARACHI HIGH COURT SINDH 2219 #

2022 Y L R 2219

[Sindh]

Before Irfan Saadat Khan and Muhammad Faisal Kamal Alam, JJ

Mst. AYSHA BEGUM---Petitioner

Versus

PROVINCE OF SINDH through Secretary Housing and Town Planning and others---Respondents

Constitutional Petition No. 5539 of 2017, decided on 17th November, 2021.

Karachi Development Authority Order (P.O. No. V of 1957)---

----Art. 11---Civil Procedure Code (V of 1908), S. 35-A---Constitutional petition---Plot---Restoration of possession---Renumbering of plots---Special costs, imposition of---Public auction quota and Minister quota---Preference---Petitioner sought restoration of possession of residential plot allotted to her after death of her husband---Plea raised by petitioner was that due to illegal acts of Karachi Development Authority officials, her plot was renumbered and thereafter allotted to respondents---Contention of authorities was that plot allotted to petitioner was renumbered and allotted to respondents on Minister quota---Validity---Plot numbers allotted to petitioner and respondents were of one and the same plot, belonging to petitioner---Plot in the name of respondents was illegally created by officials of Karachi Development Authority (KDA) by misusing their official power and authority and for apparent "extraneous motives"---Action of Karachi Development Authority officials in rearranging, renumbering the whole lane was illegal---If plot of respondents allotted under Minister quota was encroached upon, there was no justification available with KDA officials to rearrange, re-fix and reallocate, fit in or to devise a method to cause prejudice to petitioner, who was owner of plot in question---Committee headed by high officials of KDA was of the view that such action of allocation and renumbering of plot was illegal and in fact plot allotted to respondents was fitted in plot allotted to petitioner---High Court declined to approve action of Karachi Development Authority officials in rearranging / renumbering plot of petitioner as plot of respondents---High Court directed Karachi Development Authority to allot and handover peaceful, vacant and physical possession of an alternate plot, having same value and utility to petitioner forthwith---High Court also imposed special costs upon Karachi Development Authority as due to acts and abuse of authority by its officials petitioner suffered a lot---Constitutional petition was allowed in circumstances.

Mustafa Lakhani v. Pakistan Defence Officers Housing Authority, Karachi 2008 SCMR 611; Farkhanda Jabeen, Lab. Assistant, Government High School Thathi Kasguma, District Bhimber and 94 others v. Azad Government of the State of Azad Jammu and Kashmir, through its Chief Secretary having its office at new Secretariat, Muzaffarabad and 57 others 2016 PSC 120; Senate through Chairman v. Shahiq Ahmed Khan 2016 SCMR 460; Tahir Humayun and others v. High Court of Balochistan through Registrar and others PLD 2016 Bal. 56 and Mst. Ummatullah through Attorney v. Province of Sindh through Secretary Ministry of Housing and Town Planning, Karachi and 6 others PLD 2010 Kar. 236 ref.

Syed Asif Majeed and 5 others v. A.D.C.(C)/asc(L), Lahore and 15 others 2000 SCMR 998; Muhammad Din v. Abdul Ghani and another 2012 SCMR 1004; Inayatullah Khan and others v. Shabir Ahmed Khan 2021 SCMR 686; Ali Gohar v. Province of Sindh and others 2018 CLC 1999 and Messrs SF Engineering Services through Proprietor v. Federation of Pakistan through Secretary, Water and Power, Islamabad and 4 others PLD 2014 Sindh 378 distinguished.

Badar Alam and Kashif Badar for Petitioner.

Mehran Khan, Assistant Advocate General, Sindh for Respondents Nos.1, 8, 16 and 17.

Mubarak Ali Shah for Respondents Nos. 2 to 7 and 14.

Ms. Riffat Bano for Respondent No.9.

Zia ul Haq Makhdoom, Muhammad Azhar Mahmood and Abdullah Nizamani for Respondents Nos.10 to 13.

None present for Respondent No.15.

YLR 2022 KARACHI HIGH COURT SINDH 2243 #

2022 Y L R 2243

[Sindh]

Before Nadeem Akhtar, J

NASEER UDDIN JATOI---Appellant

Versus

Miss REHAM ASAD through Attorney and 2 others---Respondents

F.R.A. No. 38 of 2017, decided on 25th June, 2022.

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

----S. 15---Eviction petition---Bona fide personal need---Scope---Tenant assailed order passed by Rent Controller whereby he was directed to handover the vacant possession of the demised premises---Validity---Eviction application of the landlady showed that she had specifically pleaded that the demised premises was required for her personal use as well as for the personal use of her sister who was unmarried at the relevant time---Claim of landlady could not be dislodged by the tenant---Landlady had successfully discharged her burden in proving her personal need whereafter the burden shifted upon the appellant, but he had failed to discharge the same---Impugned order did not require interference---Appeal was dismissed.

Muhammad Ilyas Alvi v. Zafar Pasha 1982 CLC 1324 ref.

Mrs. Noor Jehan Bi v. Muhammad Yousaf 2002 SCMR 1933; Dr. Abdul Hafeez v. Province of Punjab through the Secretary Education, Lahore and others PLD 1991 SC 165; Nisar Ahmad Khan v. Noor Muhammad Khan and 6 others 1990 SCMR 544; Dr. A. R. Khan v. Muhammad Ishaque 1972 SCMR 437; Mrs. Maryam A. Munif v. Mrs. Ghazal Bukhari through Attorney 2015 CLC 1786; Mehboob Alam v. Miss Tehseen Shafqat Khan and others PLD 2001 Kar. 238; Raja Shahbaz Khan v. Muhammad Fazal Kiani 1988 CLC 811 and Mrs. Nadira Farooqui v. District and Sessions Judge, Karachi South and another 1987 MLD 616 distinguished.

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

----S. 15---Eviction petition---Bona fide personal need---Scope---If the statement made on oath by the landlord is consistent with the averments made by him in his ejectment application and neither is his statement shaken nor is anything brought in evidence to contradict his statement, it would be sufficient for the grant of his ejectment application; all that the landlord was to show that he required the demised premises of a particular tenant for his personal use and the choice was his as to the suitability of the demised premises which he required for his personal use, and that his need is reasonable and bona fide; the landlord has the complete option to choose from any one of the several tenements occupied by the tenants in order to avail of the ground of personal need; and, the landlord himself would determine in what way, subject to law, he wants to utilize his premises after eviction of the tenant.

----S. 15---Eviction petition---Non-appearance of landlord in witness box---Appearance of landlord through attorney---Scope---Evidence produced by landlord through his attorney is admissible and is not liable to be rejected or discarded.

Mst. Sardar Jehan Begum v. Dr. Muhammad Javaid and 2 others 2013 YLR 2275; Raja Shahbaz Khan v. Muhammad Fazal Kiani 1988 CLC 811 and Ghulam Mohy-ud-Din v. Muhammad Ishaq and 3 others 1980 CLC 241 per incuriam

Mst. Jehan Ara through Attorney v. Raja Zafarullah Janjua PLD 2003 SC 277 and Syed Abdul Rauf v. Abdul Sattar 1998 SCMR 2525 rel.

Muhammad Irfan for Appellant.

Muhammad Omer Soomro along with Shahbakht Pirzada for Respondent No.1.

YLR 2022 KARACHI HIGH COURT SINDH 2255 #

2022 Y L R 2255

[Sindh]

Before Muhammad Shafi Siddiqui, J

Messrs ADAMJEE IMPEX through Hamza Anwar Lakhani---Petitioner

Versus

Shaikh MUHAMMAD KHALID and 4 others---Respondents

Constitutional Petition No. S-848 of 2020, decided on 19th April, 2021.

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

----S. 16---Default in payment of rent---Petitioner/tenant was depositing the rent in favour of predecessor of respondent/ landlord in another case, which was pending in the Court of Rent Controller---Respondent/landlord served notice and subsequently filed application for eviction of petitioner/tenant on ground of default---Rent Controller called report in respect of the other case and the report was that, an amount of Rs.326,934/- was deposited in the name of predecessor of the respondent at the admitted rate of rent---Petitioner claimed errors in the calculation of the rent in the said report---Held, that rent for the period in issue and disclosed in the impugned orders had already been deposited in and if there was any default at all, it was only a technical one---Courts below had drawn their conclusions only because of the incorrect calculation which was also to such extent conceded by respondent---Impugned orders passed under S. 16(2) of the Sindh Rented Premises Ordinance, 1979, were harsh inasmuch as the same struck off the defence without a proper scrutiny of ledgers of the rent that had already been deposited in the case in the name of same landlord---Respondent/ landlord would conveniently recover the amount---Constitutional petition was allowed accordingly.

Mehboob v. Nur Ahmad 1989 SCMR 1327; Maj. (R) A.S.K. Samad v. Lt.-Co1. (R) A. Hussain 1987 SCMR 1013; Dr. Aftab Ahmed Khan v. Mst. Zaibun Nisa 1998 SCMR 2085; Muhammad Har v. Amir Bano 1995 MLD 833; Abdullah Ghanghro v. Mst. Tahira Begum 1988 SCMR 970; Noor Muhammad v. Mehdi PLD 1991 SC 711 and Mst. Sughra Begum v. Aftab Ahmed PLD 1987 Kar. 524 rel.

Ahmed Ali Hussain for Petitioner.

Naveed Anjum for Respondents.

YLR 2022 KARACHI HIGH COURT SINDH 2276 #

2022 Y L R 2276

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

Syed AHMED HUSSAIN SALMAN alias SP and 2 others---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 117 and 120 of 2019, decided on 14th February, 2022.

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

----Ss. 302(b), 324, 353, 436 & 34---Explosive Substances Act (VI of 1908), Ss. 3 & 4---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, mischief by fire and explosive substance, common intention, recovery of explosive substance and firearms, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused were charged for throwing hand cracker in the chowki of Rangers with intention to commit murder of Rangers Personnel, to create terror and to cause damage to the Government property---Ocular account of the incident had been furnished by sole eye-witness, however, said witness did not know the accused before the incident and he did not give any hulia of the accused in his S. 161, Cr.P.C. statement or said that he could identify the accused if he had seen them again which greatly undermines his ability to pick out any accused with certainty/accuracy at an identification parade---Said witness gave his S. 161, Cr.P.C. eye-witness statement after considerable delay for which he had provided no explanation especially as he was not injured which greatly undermined his eye-witness evidence---Evidence showed that eye-witness only got a fleeting glimpse of the accused when they threw the plastic bag into the post---Sketch of said witness of the accused was inexplicable made seven days after the incident---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal was allowed and accused were acquitted by setting aside the convictions and sentences recorded by the Trial Court, in circumstances.

Muhammed Mansha v. State 2001 SCMR 199 ref.

Muhammed Asif v. State 2017 SCMR 486 rel.

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

----Ss. 302(b), 324, 353, 436 & 34---Explosive Substances Act (VI of 1908), Ss. 3 & 4---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Qanun-e-Shahadat (10 of 1984), Art. 22---Appreciation of evidence---Benefit of doubt---Test identification parade--- Infirmities---Accused were charged for throwing hand cracker in the chowki of Rangers with intention to commit murder of Rangers Personnel, to create terror and to cause damage to the Government property---Identification parade was held two months after the incident in which the eye-witness only picked out two accused and failed to assign to each of them a specific role---Some procedural defects existed in the identification parade especially in terms of the dummies all being different in terms of height and features and there CNIC's names, ages, etc., were not recorded which all tended to put on caution with regard to the legal worth of the identification parade---Sole eye-witness would not have been able to correctly, safely and reliably identify the accused, therefore, the conduct of the identification parade became inconsequential---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal was allowed and accused were acquitted by setting aside the convictions and sentences recorded by the Trial Court, in circumstances.

Kanwar Ali's case PLD 2009 SC 488 and Javed Khan v. State 2017 SCMR 524 rel.

----Ss. 302(b), 324, 353, 436 & 34---Explosive Substances Act (VI of 1908), Ss. 3 & 4---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Appreciation of evidence---Benefit of doubt---Medical evidence---Scope---Accused were charged for throwing hand cracker in the chowki of Rangers with intention to commit murder of Rangers Personnel, to create terror and to cause damage to the Government property--- With no eye-witness evidence to the identify as to who carried out the attack, the medical evidence became inconsequential as it could only reveal what kind of weapon/ device was used---Sole eye-witness could not identify the person who threw the explosive device---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal was allowed and accused were acquitted by setting aside the convictions and sentences recorded by the Trial Court, in circumstances.

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

----Ss. 302(b), 324, 353, 436 & 34---Explosive Substances Act (VI of 1908), Ss. 3 & 4---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Appreciation of evidence---Benefit of doubt---Confession before police---Scope---Accused were charged for throwing hand cracker in the chowki of Rangers with intention to commit murder of Rangers Personnel, to create terror and to cause damage to the Government property---Record showed that the accused confessed to the offence whilst in police custody---Confessions before the police were inadmissible in evidence and thus no reliance on such confessions could be placed---High Court observed that none of the accused confessing to the offence were brought before a Magistrate to record their confessions despite they being brought before a Magistrate for an identification parade---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal was allowed and accused were acquitted by setting aside the convictions and sentences recorded by the Trial Court, in circumstances.

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

----Ss. 302(b), 324, 353, 436 & 34---Explosive Substances Act (VI of 1908), Ss. 3 & 4---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Appreciation of evidence---Benefit of doubt---Non-recovery of incriminating material---Scope---Accused were charged for throwing hand cracker in the chowki of Rangers with intention to commit murder of Rangers Personnel, to create terror and to cause damage to the Government property---Nothing was recovered from the accused however, that was to be expected as the case against them was throwing a fire cracker into the chowki which obviously they could not have retained---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal was allowed and accused were acquitted by setting aside the convictions and sentences recorded by the Trial Court, in circumstances.

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

----Ss. 302(b), 324, 353, 436 & 34---Explosive Substances Act (VI of 1908), Ss. 3 & 4---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Appreciation of evidence---Benefit of doubt---Accused were implicated by co-accused---Scope---Accused were charged for throwing hand cracker in the chowki of Rangers with intention to commit murder of Rangers Personnel, to create terror and to cause damage to the Government property---Record showed that accused had only been implicated by their co-accused, however that could not be used as evidence against them unless there was other unimpeachable corroborative evidence from an independent source of which there was none in the case---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal was allowed and accused were acquitted by setting aside the convictions and sentences recorded by the Trial Court, in circumstances.

Federation of Pakistan v. Muhammed Shafi Muhammed 1994 SCMR 932 rel.

(g) 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.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Muhammad Imran Meo for Appellants (in Spl. Criminal A.T. Appeal No. 117 of 2019).

Pervez Akhtar and Nadeem Ahmed Azar for Appellants (in Spl. Criminal A.T. Appeal No. 117 of 2019).

Saadat Ali, Special Public Prosecutor Rangers assisted by Abrar Ali Khichi, Addl. Prosecutor General, Sindh for Respondents (in Spl. Criminal A.T. Appeals Nos. 117 and 120 of 2019).

Abdul Khursheed Khan for Appellant (in Spl. Criminal A.T. Appeal No. 120 of 2019)

YLR 2022 KARACHI HIGH COURT SINDH 2304 #

2022 Y L R 2304

[Sindh]

Before Salahuddin Panhwar, J

FAWAD SALIM MALIK---Plaintiff

Versus

Mst. SAMINA ANSARI through General Attorney and others---Defendants

Suit Nos. 1104 and 1284 of 2013, decided on 14th December, 2021.

Civil Procedure Code (V of 1908)---

----Ss. 16, 20 & O.VII, R.10---Specific Relief Act (I of 1877), Ss. 12, 42 & 54---Suit for specific performance of agreement to sell, declaration and injunction---Territorial jurisdiction---Return of plaint---Two cross suits were filed at place "K" as document was executed there, whereas suit property was situated at place "T"---Validity---Jurisdiction of Court was neither dependent upon wishes of parties nor consent of two or more could control such subject---Jurisdiction was always subject to Constitution or any other law relating to such question---Court could exercise any jurisdiction in any matter brought before it until and unless such jurisdiction was conferred upon it by the Constitution itself or under any law---If case fell squarely within meaning of S.16(d) of Civil Procedure Code, 1908, Court was not left with any discretion but to return the plaint for its presentation before the Court within whose jurisdiction property was situated---Execution of document at place "K" did not justify the plea that High Court had jurisdiction---Plaintiff was directly claiming rights and interest in immovable property situated at place "T"---Plaintiff did not challenge the document or its legality so executed at place "K" but had sought determination of his rights and interest in immovable property---Subject matter of both the two suits was the same and both the suits had already been consolidated by High Court---Suits were not maintainable before High Court and were liable to be returned for their presentation before the Court within whose local territorial jurisdiction the property was situated---High Court returned the plaints to plaintiffs who could file the same in the Court having jurisdiction---Plaint was returned in circumstances.

Malik Iqbal Hassan v. DHA and others PLD 2019 Lah. 145; Muhammad Waseem Ghori and another v. Altaf Hussain Tunio and 6 others 2016 YLR 157; Mst. Aisha Siddiqui's case PLD 2010 Kar. 261; Firdous Trading Corporation v. Japan Cotton and General Trading Company PLD 1961 Kar. 565; Haji Abdul Malik and 10 others v. Muhammad Anwar Khan and 26 others 2003 SCMR 990 and Khan Muhammad Tareen v. Nasir and Brother Coal Company 2018 SCMR 2121 ref.

Zayyad Khan Abbasi for Plaintiff (in Suit No. 1104 of 2013 and for Defendant in Suit No. 1284 of 2013).

Khurram Memon for Defendant No.1 (in Suit No. 1104 of 2013 and for Plaintiff in Suit No. 1284 of 2013).

YLR 2022 KARACHI HIGH COURT SINDH 2336 #

2022 Y L R 2336

[Sindh (Hyderabad Bench)]

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

HASSAN alias ALI HASSAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-123 and Confirmation Case No. 23 of 2019, decided on 2nd December, 2021.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Accused was charged for committing murder of the son of complainant and his niece by firing---Motive behind the occurrence was the inter-se illicit relations of the deceased persons---Ocular account supported by medical evidence---Scope---Presence of the eye-witnesses, albeit questioned by the accused, in the house of complainant and then on the spot was natural---Eye-witnesses were not only in close relation with the complainant but were also residents of the same area---Emphasis of defence that as brother of complainant/witness had admitted in cross-examination that he was running a hotel in a town, his presence at the time of incident i.e. 4.30 p.m. was unbelievable was misconceived---Such revelation would not mean that said witness was not present at the spot---Running a hotel by said witness did not mean or require his physical presence in the hotel entire time from dawn to dusk---Commonly, a hotel was always run by entire family which some time included even cousins, uncles, etc. and they turn by turn remained present---Such revelation by said witness that he worked in a hotel or that he opened the hotel in the morning and closed at 12 p.m. would not cast a doubt on his claim that on the day of incident he was present in the house of the complainant and had reached the place of incident with her and another witness after hearing fire shot where he saw accused committing murders of the deceased---Record showed that there had occurred no mistake by the witnesses in narrating place and time of incident, no error in identifying the accused firing at the victim and no fault in classifying the weapon used in the commission of the offence--- Unshaken account of witnesses, despite lengthy but unfruitful cross-examination, was supported by medical evidence that gave exact account of locale of injuries sustained by the victims as narrated by them---Circumstances established that the prosecution had proved its case beyond shadow of doubt, but due to mitigating circumstances, death sentence was reduced to imprisonment for life---Appeal was disposed of accordingly.

2010 SCMR 1009; 2015 SCMR 1142; 2017 SCMR 486; 2017 SCMR 596; 2017 SCMR 2036; 2018 SCMR 344 and 2019 SCMR 129 ref.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Circumstantial evidence---Scope---Accused was charged for committing murder of the son of complainant and his niece by firing---Recovery of crime weapon from the accused and positive forensic report qua its matching with empties recovered from places of the incident further sealed the frame around narration of incident given by the witnesses about role played by the accused---Record showed that there was no delay in sending the crime weapon and the empties, recovered on the same day, to Forensic Expert to induce any idea of contrivance in setting up such evidence against the accused---All such pieces of evidence tended to reflect a complete mosaic the incident was made of in which the involvement of accused in the offence was indelibly noticeable---No other hypothesis could be assumed in presence of such evidence except guiltiness of the accused---Acquittal of the accused in the case of recovery of the pistol from him would not have any adverse bearing on merits of the case---Such acquittal at the maximum would mean the prosecution was not able to establish its possession by the accused at the time of its recovery from him, or the manner and mode of recovery of the pistol from the accused, as asserted by the prosecution, had not be established---Pistol used by the accused to murder the deceased was altogether a different fact which had been proved not only from the evidence of eye-witnesses but from matching profile aligning the empties recovered from the spot with the pistol---Circumstances established that the prosecution had proved its case beyond shadow of doubt, but due to mitigating circumstances, death sentence was reduced to imprisonment for life---Appeal was disposed of accordingly.

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Accused was charged for committing murder of the son of complainant and his niece by firing---Normal punishment for an offence under S.302(b), P.P.C. was death, however, it was only when circumstances extenuating gravity of the offence were available on record; a departure from that penalty would be warranted---Accused was arrested and was in continuous confinement since then, which was more than 14 years and was almost a full term---Murder of two persons at the hands of accused had although been proved beyond a shadow of doubt but the motive alleged had not been established---Said factors pointed out to circumstances overwhelmingly mitigating in nature and justified conversion of death sentence---Accordingly, the appeal was dismissed and conviction of the accused was maintained but his death sentence was converted into life imprisonment each against each murder---Appeal was disposed of accordingly.

Ahsan Gul Dahri for Appellant.

Riaz Ali Panhwar and Om Parkash for the Complainant.

Shahzado Saleem Nahiyoon, Addl. P.G. for the State.

YLR 2022 KARACHI HIGH COURT SINDH 2345 #

2022 Y L R 2345

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

JAMSHER ALI and 3 others---Applicants

Versus

The STATE and 2 others---Respondents

Criminal Miscellaneous Applications Nos. S-702 and S-768 of 2021, decided on 28th February, 2022.

Criminal Procedure Code (V of 1898)---

----Ss. 173 & 561-A--- Inherent jurisdiction--- Police encounter---Investigation report filed by police under "C" class was disposed of by Magistrate under "B" class (false case) with direction to take action against complainant party of police officials---Validity---Material collected during course of investigation was not sufficient enough to declare that FIR lodged by police officials was maliciously false yet such material was sufficient to take cognizance against accused persons---High Court modified findings of Magistrate by converting category of case from "B" class to "C" class---Some material had come on record against police officials in respect of suspicious encounter resulted into death of three persons and the same needed high standard inquiry against police officials---High Court in exercise of inherent jurisdiction under S. 561-A, Cr.P.C. directed Inspector General of Police to conduct departmental inquiry into the matter---Application was disposed of accordingly.

Sofi Mureed Hussain Alfuqrah and another v. The State and another PLD 2016 Sindh 300; Syeda Tousif Zohra v Syed Arif Hussain Zaidi and 2 others 2008 YLR 2680; Farooq Sumar and others v. The State and others 2004 PCr.LJ 1023; Muhammad Nasir Cheema v. Mazhar Javaid and others PLD 2007 SC 31; Hakim Ali v. The State PLD

2006 Kar. 302 and Imdad Ali Khawaja v. The State and others 2016 SCMR 2057 ref.

Syed Jaffar Ali Shah for Applicants (in Criminal Miscellaneous Application No. S-702 of 2021).

Manzoor Hussain Ansari for Respondent No. 2. (in Criminal Miscellaneous Application No. S-702 of 2021).

Shafi Muhammad Mahar, Deputy Prosecutor General for the State (in Criminal Miscellaneous Application No. S-702 of 2021).

Manzoor Hussain Ansari, for Applicant (in Criminal Miscellaneous Application No. S-768 of 2021).

Syed Jaffar Ali Shah for Respondent Nos.5 to 9 and 13 (in Criminal Miscellaneous Application No. S-768 of 2021).

Shafi Muhammad Mahar, Deputy Prosecutor General for the State (in Criminal Miscellaneous Application No. S-768 of 2021).

YLR 2022 KARACHI HIGH COURT SINDH 2359 #

2022 Y L R 2359

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

MANNAN and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 54 and Confirmation Case No. 3 of 2021, Criminal Appeals Nos. 52 and 55 of 2021, decided on 17th February, 2022.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Delay of four and half hours in lodging the FIR---Scope---Accused were charged for committing murder of the son of complainant and also causing injuries to the complainant and his other son---First Information Report was lodged with promptitude being four and half hours after the incident whereby the accused were all named in the FIR as carrying out the attack on the complainant, his son, who were injured and son of complainant dying on account of the injuries which he sustained in the attack---Even if there was considered to be a slight delay in lodging the FIR that was explained by the fact that the complainant was injured and needed to receive treatment in hospital and attend to his son who was brought dead to the hospital and thereafter the FIR was lodged---Explained delay in lodging the FIR was not fatal to the prosecution case---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal was dismissed accordingly.

Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872 rel.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Identification of accused---Scope---Accused were charged for committing murder of the son of complainant and also causing injuries to the complainant and his other son---Record showed that the eye-witnesses had correctly identified the accused in attacking and beating the complainant and injured son of complainant---Accused persons only claimed that they could not be identified correctly due to the darkness which due to the close proximity of the attack to the eye-witnesses especially the complainant and injured witness who were injured during the attack, which was found to be of no assistance to the accused persons based on the particular facts and circumstances of the case---Based on believing the evidence of the eye-witnesses and their correct identification of the accused persons what other supportive/corroborative material was thereagainst the accused---Keeping in view the legal position that such evidence was only a rule of caution/ prudence in the face of reliable and trustworthy eye-witness evidence especially as in the case there were six eye-witnesses who were found to share such attributes and had correctly identified the accused persons---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal was dismissed accordingly.

Muhammad Mansha v. The State 2018 SCMR 772; Islam Sharif v. The State 2020 SCMR 690; Muhammad Yaqoob v. The State 2021 SCMR 1387; Zakir Khan and others v. The State 1995 SCMR 1793; Noor Muhammad v. The State 1999 SCMR 2722; Zia Ullah v. The State 2021 SCMR 1507; Zahid Imran v The State PLD 2006 SC 109; Muhammad Nadeem alis Deemi v. The State 2011 SCMR 872; Muhammad Mansha v The State 2001 SCMR 199; Zulfiqar Ahmad v. The State 2011 SCMR 492 and Ijaz Ahmad v The State 2009 SCMR 99 ref.

Muhammad Afzal v. The State 2003 SCMR 1678 rel.

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---No weapon was recovered---Scope---Accused were charged for committing murder of the son of complainant and also causing injuries to the complainant and his other son---No recovery was made from any of the accused persons, however, such fact was not relevant as accused was arrested six weeks after the incident in another case and would therefore had no weapon on him when he was arrested in that case as he was already in jail---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal was dismissed accordingly.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Minor contradictions---Scope---Accused were charged for committing murder of the son of complainant and also causing injuries to the complainant and his other son---All the witnesses were consistent in their evidence---Even if there were some contradictions in the evidence of witnesses, same were minor in nature and not material and certainly not of such materiality so as to affect the prosecution case/evidence and the conviction of the accused persons---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal was dismissed accordingly.

Zakir Khan v. State 1995 SCMR 1793 and Khadim Hussain v. The State PLD 2010 SC 669 rel.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Chain of circumstances---Scope---Accused were charged for committing murder of the son of complainant and also causing injuries to the complainant and his other son---Evidence of the witnesses provided a believable corroborated unbroken chain of events from the complainant being informed about the quarrel with witness with the complainant going to where witness was meant to be to the complainant and injured being attacked and beaten by the accused persons and two others to the deceased hearing of the attack on his father to his going to the scene in order to save his father to the deceased being grabbed by proclaimed offender and being stabbed by accused in the abdomen to the complainant trying to take the injured deceased to hospital by rickshaw to the death of the deceased by a sharp object as confirmed by the post-mortem of the deceased and to the arrest of the accused persons--- Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal was dismissed accordingly.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Police Officials as witnesses---Scope---Accused were charged for committing murder of the son of complainant and also causing injuries to the complainant and his other son---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---Evidence of the police witnesses could be fully relied upon, in circumstances--- Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal was dismissed accordingly.

Mushtaq Ahmed v. The State 2020 SCMR 474 rel.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Substitution--- Scope--- Accused were charged for committing murder of the son of complainant and also causing injuries to the complainant and his other son---Father would let the real murderer of his son get away scotfree and falsely implicated an innocent person by way of substitution did not appeal to logic, commonsense or reason---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal was dismissed accordingly.

Munir Ahmed Khan for Appellant (in Criminal Appeal No. 54 of 2021).

Muhammad Iqbal Awan, Additional Prosecutor General for the State (in Criminal Appeal No. 54 of 2021).

Mushtaque Ahmed Jahangiri and Sagheer Ahmed for the Complainant (in Criminal Appeal No. 54 of 2021).

Tahir-ur-Rehman Tanoli for Appellant (in Criminal Appeal No. 52 of 2021).

Muhammad Iqbal Awan, Additional Prosecutor General for the State (in Criminal Appeal No. 52 of 2021).

Mushtaque Ahmed Jahangiri and Sagheer Ahmed for the Complainant (in Criminal Appeal No. 52 of 2021).

Munir Ahmed Khan for Appellant (in Criminal Appeal No. 55 of 2021).

Muhammad Iqbal Awan, Additional Prosecutor General for the State (in Criminal Appeal No. 55 of 2021).

Mushtaque Ahmed Jahangiri and Sagheer Ahmed for the Complainant (in Criminal Appeal No. 55 of 2021).

YLR 2022 KARACHI HIGH COURT SINDH 2378 #

2022 Y L R 2378

[Sindh]

Before Yousuf Ali Sayeed, J

MUHAMMAD SALAM---Applicant

Versus

Syed JAMEEL AHMED and 2 others---Respondents

Civil Revision Application No. 54 of 2012, decided on 28th September, 2018.\

Specific Relief Act (I of 1877)---

----S. 42---Limitation Act (IX of 1908), S. 3---Suit for declaration---Limitation---Scope--- Respondent assailed the petitioner's title to the suit property---Petitioner impugned the maintainability of the suit on the ground that a similar suit had previously been filed by the respondent on the same cause of action, eliciting similar relief, which was dismissed and that the suit was time barred---Trial Court dismissed the suit---Appellate Court set aside the order passed by Trial Court and decreed the suit---Validity---Even if the dismissal of earlier suit did not operate as res judicata for the reasons ascribed on behalf of the respondent, it was nonetheless apparent that the suit was time barred---Such aspect was not considered by the Appellate Court on any legal plane, but instead was proceeded on the basis of a personal conception of hardship as per which the Additional District Judge was fit to overlook/ condone limitation, which could not have been done---Appellate Court had acted with material irregularity---Revision petition was accepted, judgment passed by Appellate Court was set aside and that of Trial Court was restored.

Iftikhar Javed Qazi for Applicant.

S. M. Akhter Rizvi for Respondent No.1.

Aamir Ali for Respondents Nos. 2 and 3.

YLR 2022 KARACHI HIGH COURT SINDH 2396 #

2022 Y L R 2396

[Sindh]

Before Omar Sial, J

MUHAMMAD ALI & COMPANY (Deceased) through Legal heirs and others---Petitioners

Versus

ALI AKBAR and 2 others---Respondents

Constitution Petition No. S-123 of 2022, decided on 25th March, 2022.

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

----S. 15---Civil Procedure Code (V of 1908), S. 12(2)---Eviction application---Application against dead person---Non-disclosure of death by legal heirs of tenant--- Effect--- Scope--- Petitioners assailed the dismissal of their application under S. 12(2), C.P.C.---Claim of petitioners was that the respondent/ landlord had obtained decree from the Rent Controller as well as Appellate Court against a dead person---Application under S. 12(2), C.P.C., was concurrently dismissed---Validity---Issue of proceedings against a dead person was not agitated at trial nor in appeal---Legal heirs of the deceased had all along contested the eviction application and had also filed an appeal against the eviction order---Petitioners themselves had not disclosed about the death and had kept silent throughout---Only after the commencement of execution they began to argue that the Rent Controller could not have ordered eviction of a dead person---Petitioners were seeking premium for their own non-disclosure---Constitutional petition was dismissed, in circumstances.

Rashida Khatoon v. Syed Hamid Ali 1986 SCMR 256 ref.

Khadim Hussain v. Abid Hussain PLD 2009 SC 419; Muhammad Essa v. Government of Sindh through District Co-ordination Officer 2015 SLJ 147; Mohammad Saeed v. Khalilur Rehman and 2 others 1992 MLD 1021 and Abdul Rashid v. Haji Syed Ainullah PLD 1985 Quetta 56 distinguished.

Sikandar Khan for Petitioners.

Abdul Qadir Khan along with Hafiz Danish for Respondent No.1.

YLR 2022 KARACHI HIGH COURT SINDH 2406 #

2022 Y L R 2406

[Sindh]

Before Ahmed Ali M. Shaikh, C.J. and Yousuf Ali Sayeed, J

SHAFIQ-UR-REHMAN KHANBATI---Petitioner

Versus

The RETURNING OFFICER and 3 others---Respondents

Constitutional Petition No. D-4361 of 2022, decided on 24th August, 2022.

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

----S. 35(1)(c)---Election---Nomination Form, rejection of---Petitioner/candidate was aggrieved of order passed by Returning Officer rejecting his nomination papers---Validity---Petitioner was not registered voter of the ward from where he intended to contest election instead he was registered voter of another ward---Petitioner did not fulfill qualification criteria in terms of S.35 (1)(c) of Sindh Local Government Act, 2013---High Court declined to interfere in order passed by Returning Officer---Constitutional petition was dismissed, in circumstances.

Shujauddin Khan v. Federation of Pakistan and others C.P. No. 644 of 2022; Rehman Khan v. Federation of Pakistan and others C.P. No. D-3990 of 2022; Ghulam Haider v. Federation of Pakistan and others C.P. No. D-4160 of 2022; Haji Khan Bhatti v. Province of Sindh and others 2016 SCMR 1970 and Civil Petition No.846-K of 2022 ref.

Haq Nawaz Talpur for Petitioner.

Nemo for Respondent No.1.

Nemo for Respondent No.2.

Saifullah, Assistant Advocate General, Sindh for Respondent No.3.

Abdullah Hanjrah, and Sarmad Sarwar, Law Officers for Respondent No.4.

YLR 2022 KARACHI HIGH COURT SINDH 2441 #

2022 Y L R 2441

[Sindh]

Before Mohammad Karim Khan Agha and Abdul Mobeen Lakho, JJ

SADAF SHARJEEL and another---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU (SINDH) through Director General and another---Respondents

Constitutional Petition No. D-8032 of 2019, C.M.As. Nos. 25675 and 27738 of 2020, decided on 18th June, 2021.

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

----S. 114---Review---Scope---Each case of review has to be decided on the basis of its own peculiar facts and circumstances and merits, with no two reviews being the same.

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

---S. 9(b)--- Exit from Pakistan (Control) Ordinance (XLVI of 1981), S.2---Constitution of Pakistan, Art.199---Constitutional petition---Bail order, review of---Removal of name from Exit Control List---Petitioners were accused facing trial before Accountability Court who were granted bail and their names were placed on Exit Control List---Petitioners sought review of their bail order to the extent that their names would be deleted from Exit Control List---Validity---Charge was not framed against petitioners, despite a delay of over one year due to no fault of them---There were twelve accused and 56 prosecution witnesses each of which would be subject to 12 separate cross examinations by every accused---If names of petitioners was to remain on Exit Control List until conclusion of trial, petitioners would be restricted to remain in Pakistan for at least three years more---Trial was unlikely to be completed within next three years---Such would be violative of fundamental rights of petitioners---In the past when petitioner were allowed to travel abroad, they had always returned on time---High Court directed Federal Government to immediately remove names of petitioners from Exit Control List---High Court directed the petitioners to return to Pakistan as and when required to appear in person by Trial Court---Constitutional petition was allowed accordingly.

Rafique v. Federation of Pakistan 2018 MLD 597; Aijaz Hussain Jakhrani v. Federation of Pakistan C.P. No.5083 of 2019; Arsalan Iqbal v. Government of Pakistan 2015 YLR 1460; Muhammad Shahbaz Sharif v. Federation of Pakistan 2019 PCr.LJ 1123; Javed Iqbal v. Federation of Pakistan 2019 YLR 1247; Ms. Ayyan Ali v Federation of Pakistan 2017 PCr.LJ (Note) 228; Mustafa Jamal Kazi v Federation of Pakistan (C.P. No.3790 of 2018; Wajid Shams-ul-Hussain v. Federation of Pakistan PLD 1997 Lah. 617; Yousuf Ansari v Federation of Pakistan PLD 2016 Sindh 388; The Federal Government v. Ayyan Ali and another 2017 SCMR 1179; Muhammad Khyzer Yousuf Dada v. Federation of Pakistan PLD 2011 Kar. 546 and Sohail Latif v Federation of Pakistan PLD 2008 Lah. 341 ref.

Raj Ali Wahid Kunwar for Petitioners.

Riaz Alam, Special Prosecutor, NAB along with I.O. Mohammad Adeel Khan for Respondents/State.

YLR 2022 KARACHI HIGH COURT SINDH 2452 #

2022 Y L R 2452

[Sindh]

Before Muhammad Iqbal Kalhoro and Kausar Sultana Hussain, JJ

Syed QAISER MEHMOOD and another---Petitioners

Versus

The STATE (CHAIRMAN NAB) through Director General NAB, Karachi --Respondent

Constitutional Petitions Nos. D-3001 and D-3002 of 2022, decided on 18th July, 2022.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(ix) & 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition--- Bail, grant of--- Hardship case---Adjournment, grant of---Effect---Accused persons were in custody for about more than four years on the allegation of cheating members of public at large---Validity---Adjournment was sought and was granted by Court unconditionally without any direction to further trial on next date and prosecution failed to raise any objection effectively over it nor made any vigorous effort to check such conduct---Such adjournment diluted role, if any, of accused in effectuating delay in trial to a considerable extent---Not only the accused but Trial Court by failing, consciously or unconsciously, to realize consequences of such charity and prosecution by content onlooker had become privy to a great extent, to delay in the trial---Both the accused were in jail for a considerable time and looking at the pace of the trial wherein only one witness had been examined till then---Prosecution was likely to take long time to conclude the case and composition which was detrimental to right of accused person to expeditious trial guaranteed under the Constitution---Accused persons were entitled to a relief of bail, a temporary arrangement which was subject to final outcome of case, in any case---Bail was allowed, in circumstances.

2002 SCMR 1 rel.

Rehman Ghous for Petitioners along with Shoaib Ahmed.

Shahbaz Sahotra, Special Prosecutor NAB.

Umair Qureshi, I.O. of the case present.

YLR 2022 KARACHI HIGH COURT SINDH 2460 #

2022 Y L R 2460

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto, J

MEHRAB alias MEHRO---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-107 of 2017, decided on 16th April, 2021.

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

----Ss. 23 & 34---Criminal Procedure Code (V of 1898), S. 103---Unlicensed possession of arms---Arrest and searches---Search to be made in presence of witnesses---Appreciation of evidence---Benefit of doubt---Safe custody---Delay in sending recovered weapon to Forensic Laboratory---Scope---Accused assailed his conviction under S. 23 of Sindh Arms Act, 2013---Accused was acquitted in the main case registered for offences under Ss. 302, 324, 114, 504 & 34, P.P.C.---Accused was arrested in the main case and on the same day he had voluntarily disclosed the availability of rifle in his house---Rifle was sent to the Forensic Laboratory after 10 days---Prosecution, at the trial, had failed to prove the safe custody and transmission of the weapon to the expert---No evidence was available that after arrest of the accused crime weapon was kept at Malkhana---Incharge of Malkhana was not examined---Prosecution had failed to describe the rifle allegedly recovered from the house of accused---Accused had claimed false implication in the case and had raised the plea that he was admitted in hospital---Independent corroboration was required but the prosecution had failed to examine any independent person of the locality to prove the recovery---No efforts were made to associate any private person to witness the recovery proceedings despite the availability of private persons at the place of recovery---Preparation of mashirnama was not a formality but its object was to prevent unfair dealing---Evidence of police officials could not be discarded simply because they belonged to police force, however, where the fate of accused person hinged upon testimony of police officials alone, it was necessary to find out if there was any possibility of securing independent persons at the relevant time---Evidence of the police officials without independent corroboration was unsafe for maintaining the conviction---Prosecution had failed to prove its case against the accused---Appeal was allowed and the accused was acquitted of the charge, in circumstances.

Kamal Din alias Kamala v. The State 2018 SCMR 577; Khadim

Hussain v. The State 2020 YLR Note 139; Kashif Ali and another v. The State 2019 YLR 1573 and Syed Maroof Shah v. The State 2019 PCr.LJ Note 108 ref.

Kamal Din alias Kamala v. The State 2018 SCMR 577 and Saifullah v. The State 1992 MLD 984 rel.

(b) Criminal trial---

----Benefit of doubt--- Scope--- 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 the accused then the accused will be entitled to the benefit not a matter of grace or concession but as a matter of right.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Muhammad Jameel Ahmed and Adnan Shakeel Shaikh for Appellant.

Nazar Muhammad Memon, Additional. P.G. for the State.

YLR 2022 KARACHI HIGH COURT SINDH 2486 #

2022 Y L R 2486

[Sindh]

Before Omar Sial, J

ALTAF HUSSAIN---Applicant

Versus

The STATE and 3 others---Respondents

Criminal Miscellaneous Applications Nos. 343 and 348 of 2020, decided on 25th January, 2021.

Criminal Procedure Code (V of 1898)---

----Ss. 221 & 154---Charge to state offence--- Information in cognizable case---Scope---Complainant had a scuffle with three accused persons, who were his neighbours, he got injured and went to the hospital to seek medical aid, the accused persons went inside his apartment and stole some valuables---Charge against accused persons was framed but soon thereafter an application seeking amendment of the charge was moved in which he wanted that Ss.337-A(i), 337(ii), 459 & 460, P.P.C. be added---Judicial Magistrate dismissed the application---Additional Sessions Judge added only Ss. 337-A(ii) & 337(ii), P.P.C. to the charge---Held; FIR was merely an information of the occurrence of a cognizable offence and did not mean that the allegations therein were deemed to be correct---At the moment and upon a cursory review of the evidence, occurrence of offences under Ss.337-A(i), 337(ii), 459 & 460, P.P.C. could not be conclusively ruled out---High Court directed the Trial Court to add Ss.337-A(i), 337(ii), 459 & 460, P.P.C. in the charge--- Applications were disposed of accordingly.

Shahid Hussain Soomro for Applicants (in Crl. Misc. Application No.348 of 2020 and for Respondents in Crl. Misc. Application No. 343 of 2020).

Shahnawaz Ayub for Applicant/ Complainant in Crl. Misc. Application No.343 of 2020 and for Respondent No.4 in Crl. Misc. Application No.348 of 2020).

YLR 2022 KARACHI HIGH COURT SINDH 2494 #

2022 Y L R 2494

[Sindh (Sukkur Bench)]

Before Nadeem Akhtar and Zafar Ahmed Rajput, JJ

GHULAM ASGHAR and others---Petitioners

Versus

MUHAMMAD ISMAIL and others---Respondents

Constitutional Petitions Nos. D-692, D-695, D-708, D-719, D-721, D-749 and D-754 of 2022, decided on 17th June, 2022.

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

----Ss.18 (2) & 18(5)--- Sindh Local Council (Election) Rules, 2015, Rr. 16 & 23---Joint candidates in a panel---Withdrawal of joint nomination papers---Petitioners (candidates for the seats of Chairman) and respondents (candidates for the seats of Vice-Chairman in the panels of petitioner), as joint candidates, filed their nomination papers---Respondents unilaterally submitted applications before the Returning Officers for withdrawal of their nomination papers, which were allowed by Returning Officers---Held, that S.18 of the Sindh Local Government Act, 2013 provided election to the Chairman and Vice-Chairman for Union Committees in the urban area and Union Councils in the rural area as "joint candidates"--- Under R. 16 of the Sindh Local Council (Election) Rules, 2015 the returning officers also invited nomination of the Chairman and Vice-Chairman as "joint candidates" by nomination papers in Form II-(A) duly signed by them as well as their proposer and seconder---Returning officers during scrutiny had to accept or reject their nomination papers jointly and not individually---Legislature had inserted "joint candidates" and letter (s) with the word ' candidate' was based on the premises that both members of a panel have to swim or drown together as a result of election---If law did not allow any person to file the nomination papers to contest election individually at any one seat of the Chairman or the Vice-Chairman because of joint candidature, it did not appear that the legislature would intend to allow any member of a penal to withdraw his nomination papers individually from one seat of the said joint candidature---For withdrawal of jointly submitted nomination papers, both the said candidates were required to sign the application for withdrawal of their nomination papers before the Returning Officer---In individual capacity, neither the candidate for the Chairman nor candidate for Vice-Chairman could withdraw the nomination papers jointly submitted by them in the panel as joint candidature---In the case in hand , nomination papers filed jointly by a panel of Chairman and Vice-Chairman could not be withdrawn unilaterally by a member of the panel ---Constitutional petitions were allowed by setting aside the impugned orders along with directions to the Returning Officers to issue revised list of contestin candidates by inserting names of the petitioners and the said respondents and allot them symbols as per relevant rules.

Mst. Sumera Bano v. Additional District and Sessions Judge/Appellate Authority and others 2017 YLR 2135 rel.

Muhammad Zubair Malik, Muhammad Junaid Akram, Nisar Ahmed Bhanbhro, Imdad Ali Malik, Shabbir Ali Bozdar, Kashif Hussain Shaikh, Ameenuddin Khaskheli and Shoukat Ali Bohio for Petitioners.

Mehfooz Ahmed Awan, Mukesh Kumar Karara for the private Respondents.

Ali Raza Pathan, D.A.G., Ali Raza Balouch, A.A.G. and Zeeshan Haider Qureshi, Law Officer, ECP for Official Respondents.

Lahore High Court Lahore

YLR 2022 LAHORE HIGH COURT LAHORE 46 #

2022 Y L R 46

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

ALLAH DITTA and others---Petitioners

Versus

MUHAMMAD YASIN and others---Respondents

C.M. No. 3030 of 2015 in Civil Revision No.1201 of 2002, heard on 17th June, 2021.

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

----S. 52---Qanun-e-Shahadat (10 of 1984), Art. 31---Suit for pre-emption by pre-emptors/respondents against another respondent was concurrently dismissed on ground of the non-fulfilment of necessary Talbs---Pre-emptors filed revision petition which was decreed after compromise based on written application and oral statement of special attorney of said another respondent---Applicants being subsequent bona fide purchasers filed application under S.2(2) of Civil Procedure Code, 1908---Held, that said another respondent posing himself as the owner of the suit property moved application for acceptance of the revision petition on compromise while he was not the owner of the suit property as he himself transferred the suit property in the name of present applicant---Respondent deliberately made false representation and made active concealment of fact from High Court, which amounted to fraud---At the time of decision of the revision petition on the basis of compromise, sad another respondent was not the owner of the suit property and had not possessed any interest in the suit property, therefore, his admission/statement regarding acceptance of the revision had no sanctity in the eye of law---Respondents also deliberately/knowingly concealed material facts regarding proceedings before Member Board of Revenue---Said revision petition was decided on collusive compromise, therefore, the mutation of exchange sanctioned in favour of one applicant was not hit by the principle of lis pendens---Respondents were attempting to take advantage of their own fraud through the process of court---Revision petition was allowed accordingly.

Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905; Saleem and another v. Malik Jalaluddin and 7 others PLD 1982 SC 457; Muhammad Ilyas and others v. Muhammad Sharif and others 2001 CLC 1194 and Muhammad Zubair v. Muhammad Tahir Shafique and another PLD 2013 Lah. 154 ref.

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

----S. 12(2)---Locus standi---Scope---Word "person" as used in S.12(2) of the Civil Procedure Code, 1908---Interpretation---If the intention of the lawmaker had been to restrict the right of filing application only to "person" who was party to the suit, then the word "party" ought to have been used.

Khawaja Muhammad Yousaf v. Federal Government and others 1999 SCMR 1516 and Ch. Jalal ud Din v. Mst. Asghari Begum 1984 SCMR 584 rel.

----S. 52---Lis pendens---Principle---Whoever acquires property during the pendency of action is held bound by the judgment that may be made against the person from whom he derived his title even though such a purchaser was not party to the action as had no notice of the pending litigation.

(d) Administration of justice---

----No man shall take advantage of his own wrong---Giving benefit of wrong to a wrong doer will be against the administration of justice.

Mian Muhammad Saeed and others v. The Province of West Pakistan and others PLD 1964 SC 572 and Sakhi Jan and others v. Shah Nawaz and another 2020 SCMR 832 ref.

Ch. Abdul Ghani and Miss Farzana Yasmeen for Petitioners.

Syed Zulfiqar Ali Bukhari, Mian Muhammad Tahir Iqbal, Hafiz Muhammad Riaz Mian and Mirza Aziz Akbar Baig for Respondents.

YLR 2022 LAHORE HIGH COURT LAHORE 66 #

2022 Y L R 66

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

DANIAL ISLAM---Petitioner

Versus

JUDGE FAMILY COURT, RAWALPINDI and others---Respondents

Writ Petition No. 1657 of 2021, decided on 3rd June, 2021.

Family Courts Act (XXXV of 1964)---

----S. 5--- Constitution of Pakistan, Art. 199--- Constitutional petition---Concurrent findings of facts by Courts below---Respondent-wife filed suit for recovery of maintenance allowance, gold jewelry and dowry articles, which suit was decreed in her favour by Family Court as well as by Lower Appellate Court---Validity---High Court in its extra ordinary jurisdiction, could neither substitute findings of facts recorded by Courts below nor could give its opinion regarding quality or adequacy of evidence---Assessment and appraisal of evidence was function of Family Court, which was vested with exclusive jurisdiction in such regard---When factual controversy was settled by two Court below unless and until there were compelling reason shown for misreading and non-reading of evidence in the order passed by Courts below, or there was a visible irregularity while deicing the same, High Court could not interfere with such findings---High Court declined to interfere in concurrent judgments and decrees passed by two Courts below, as no illegality or irregularity was pointed out---Constitutional petition was dismissed, in circumstances.

Abdul Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522; Perveen Umar and others v. Sardar Hussain and others 2003 YLR 3097; Muhammad Ashiq v. Additional District Judge Okara 2003 CLC 400 and Aqil Zaman v. Mst. Azad Bibi and others 2003 CLC 702 rel.

YLR 2022 LAHORE HIGH COURT LAHORE 76 #

2022 Y L R 76

[Lahore (Multan Bench)]

Before Anwaar Hussain, J

MOHAMMAD HANIF and 4 others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, VEHARI and 2 others---Respondents

Writ Petition No. 14539 of 2013, decided on 29th June, 2021.

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

----O. VI, R. 17---Specific Relief Act (I of 1877), S. 9---Pleadings, amendment of---Respondents' suit for possession was decreed by Trial Court---First Information Report was also launched by respondent regarding illegal dispossession---Petitioners filed revision petition---Respondent filed application for amendment of the plaint during the pendency of civil revision which was allowed by revisional Court---Revision petition was dismissed---Validity---None of the marginal witnesses of the alleged agreements to sell entered appearance in the witness box which was basic requirement of Art. 79 of Qanun-e-Shahadat, 1984---As per Jamabandi, suit property was owned by Government of the Punjab and the revenue record depicted that the petitioners, and not the respondents, were recorded as illegal occupants thereof---No other revenue document was there to suggest that respondent ever remained in possession---Respondent took stance in the application that while institution the suit, he appended jamabandi regarding suit property in a specific khasra---Said assertion was not established through any document---Respondent had instituted suit regarding property falling in another khasra and categorically deposed the same while being cross-examined, he could not summarily be allowed to amend the plaint to incorporate a different description of suit property i.e., one falling in specific khasra---Courts below had given weightage to FIR lodged by the respondent ignoring altogether other documentary evidence including the criminal proceedings initiated by the respondent against the petitioners---Except the said FIR, nothing had been brought on record by the respondent in support of his stance regarding his possession or dispossession by the petitioner---Plaintiff/respondent had to stand on his own legs to prove his case---Revisional court had erred in allowing the amendment of the plaint followed by the amendment in the decree, particularly when the respondent had failed to establish basic ingredients of S.9 of the Specific Relief Act, 1877---High Court allowed the Constitutional petition and directed the office to transmit the copy of the present judgment to the relevant authorities for safeguarding the interest of the Government qua the suit property.

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

----O. VI, R. 17---Pleadings, amended of---Legislature had empowered the court to allow the amendment of pleadings at any stage of the proceedings, but such discretion was not unfettered/unrestricted as it was imperative that the amendment of the pleadings might be allowed in just manner/terms---Amendment might not be allowed when it was likely to change the nature of the suit /cause of action---Amendment was also not permissible where, on account of omission to raise a plea in the pleadings, a valid right was accrued to the opposite party.

Syed Sardar Alam Zaidi v. Messrs Pakistan Gum and Chemicals Ltd. 2017 YLR Note 205 and Sardar Muhammad Naseem Khan v. Returning Officer, PP-12 and others 2015 SCMR 1698 ref.

----S.9---Suit for possession---Essentials---In a suit for possession under S.9 of Specific Relief Act, 1877, the plaintiff has to establish at trial: firstly, that he was in possession of specific immovable property; secondly, that he was dispossessed by the defendant; thirdly, that he was dispossessed without his consent and not in accordance with law; and fourthly, that such dispossession took place within a period of six months prior to the institution of the suit.

Mian Mumtaz Ahmad Zahid for Petitioners.

Muhammad Zafar Khan Sial for Respondent No.3.

YLR 2022 LAHORE HIGH COURT LAHORE 93 #

2022 Y L R 93

[Lahore]

Before Safdar Saleem Shahid, J

MUHAMMAD ISMAIL NADEEM---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, JHANG and 2 others---Respondents

Writ Petition No. 39842 of 2016, heard on 31st May, 2021.

(a) Punjab Rented Premises Act (VII of 2009)---

----S. 19---Limitation Act (IX of 1908), Art. 181---Suit for specific performance of agreement to sell---Limitation---Ejectment petition of landlord/ petitioner was concurrently dismissed because of pendency of suit filed by the tenant/ respondent---Validity---Held, that when the date was fixed in the agreement to sell, limitation for filing the suit for specific agreement fell within purview of Art. 181 of the Limitation Act, 1908, which was three years---Respondent/ tenant had filed suit for specific performance after about fourteen (14) years of alleged execution of agreement to sell---High Court set aside impugned orders and judgments passed by both the Courts below and allowed ejectment petition filed by the petitioner/landlord---Constitutional petition was accepted, in circumstances.

(b) Punjab Rented Premises Act (VII of 2009)---

----S. 19--- Eviction of tenant---Relationship of landlord and tenant---Scope---Two agreements to sell were produced by the tenant/respondent; only one agreement was admitted by the landlord/petitioner---Ejectment petition was concurrently dismissed declaring that through admitted agreement parties had agreed to terminate their previous relationship of landlord and tenant; and to sell suit property to the tenant---Held, that although one agreement sell was admitted by both parties , however, the other agreement sell was not admitted by the executor/petitioner or not proved by the claimant/respondent; therefore, no authenticity could be given to said document---No such word or sentence had been used in said admitted agreement that with execution of said document ,relationship of landlord and tenant between the parties had come to an end---High Court set aside impugned orders and judgments passed by both the Courts below and allowed ejectment petition filed by the petitioner/landlord---Constitutional petition was accepted, in circumstances.

----S. 19--- Ejecment petition---Maintainability---Pendency of civil suit for specific performance of agreement before the filing of ejectment petition---Effect---Default in payment of rent---Scope--- Ejectment petition was concurrently dismissed holding the same as not maintainable---Held, that mere agreement to sell did not create any title---Payment of alleged agreement to sell was yet to be proved---Admission of the tenant, regarding relationship of landlord and tenant between the parties, in agreement to sell exhibited by him, was established---Tenant-respondent had also admitted the default for payment of rent---Both the Courts below had committed serious error---High Court set aside impugned orders and judgments passed by both the Courts below and allowed ejectment petition filed by the petitioner/landlord--- Constitutional petition was accepted, in circumstances.

Muhammad Hanif Abbasi v. Imran Khan Niazi and others PLD 2018 SC 189; Muhammad Ibrahim and 44 others v. Fateh Ali and 30 others 2005 SCMR 1061; Mst. Rasheeda Begum and others v. Muhammad Yousaf and others 2002 SCMR 1089 and Hayat Muhammad and 8 others v. Tajuddin and another 1994 SCMR 1188 ref.

Ali Masood Hayat for Petitioner.

Sajid Hussain Qureshi for Respondents.

YLR 2022 LAHORE HIGH COURT LAHORE 99 #

2022 Y L R 99

[Lahore]

Before Aalia Neelum, J

GHULAM ABBAS---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 45-J and Criminal Revision No. 235 of 2013, heard on 17th October, 2019.\

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay in lodging FIR---Scope---Accused was charged that he along with co-accused committed murder of the deceased by inflicting hatchet blow---Motive behind the occurrence was that few days prior to the occurrence, the deceased quarrelled with the accused and also slapped him, as a result whereof, alleged incident took place---Record showed that the occurrence had taken place at 4.00 p.m.---Police station was one kilometre away from the place of occurrence---First Information Report was got registered on the oral statement of complainant on the same day at 4.20 p.m.--- Post-mortem examination was conducted by Medical Officer at 08:00 a.m. next day---Probable time lapse between injury and death was within 10 to 15 hours whereas between death and post-mortem was 06 hours--- Post-mortem examination report revealed that death took place at 02:00 a.m. the next day and dead body was brought to hospital at 06:00 a.m. the next day, which would mean that the occurrence could have taken place at any time and not at the time which complainant had claimed---Said aspect of the matter was sufficient to cast doubt about the authenticity of the FIR---No doubt delay in post-mortem alone was not fatal to the prosecution case but when court considered it with the other evidence available on the record along with post-mortem report, it did influence the mind of the Court and left the impression that there had been some wrangling about the time of registration of criminal case---Such fact created serious doubt about the genuineness of the prosecution story including presence of the complainant at the scene of occurrence---Inquest report showed that the time and date of receiving information of death was mentioned in the column No. 3 at 4.30 a.m. the next day, which created doubt about the time of death of the deceased and when the complainant reported the incident to the police---Prosecution case was that inquest report was prepared after lodging of FIR, but in the inquest report there was no mention of description of FIR---Absence of the detailed description of the FIR in the inquest report outrightly suggested that FIR was not in existence at the time when inquest report in the case was prepared---Said circumstances suggested that the FIR was ante time---Said fact also showed that inquest report of the dead body of deceased was not prepared at the time it was alleged to have been recorded, which also created doubt about the time of occurrence---If such omissions were to be appreciated in the light of the delay in conducting post mortem examination on the dead body of deceased, it cast serious doubt and also led to the conclusion that the FIR was recorded with a delay and the FIR had not been recorded at the time at which it was claimed to have been recorded---Circumstances established that the prosecution had failed to bring home the guilt of the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery memos of different articles---Scope---Accused was charged that he along with co-accused committed murder of the deceased by inflicting hatchet blow---Record showed that Investigating Officer prepared recovery memo of cotton blood-stained and un-scaled site plan on 10.11.2011---Other Investigating Officer prepared recovery memo of last worn clothes of the deceased on the next day---Name of the accused in the said documents was not asserted rather space for the name of accused was left blank---Said circumstances threw considerable doubt on the evidence of the complainant and eye-witnesses relating to the time of occurrence, time of death of deceased, time of reporting the incident and presence of the witnesses at the place of occurrence---Circumstances established that the prosecution had failed to bring home the guilt of the accused---Appeal against conviction was allowed, in circumstances.

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Chance witnesses---Scope---Accused was charged that he along with co-accused committed murder of the deceased by inflicting hatchet blow---Ocular account of the incident had been furnished by complainant and eye-witness---Record transpired that there was no independent piece of evidence to corroborate the evidence of the complainant and eye-witnesses in that case---Admittedly, the complainant and eye-witnesses were the chance witnesses---Neither the complainant nor any witness had ever told that as to why they were present at the place of occurrence---Neither the complainant nor witnesses had told that as to why the deceased was there at the place of occurrence---Deposition of the prosecution witnesses showed that the complainant and eye-witnesses were the chance witnesses---Prosecution witnesses were not only related inter-se and also with deceased but had motive to falsely implicate the accused---Circumstances established that the prosecution had failed to bring home the guilt of the accused---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---Motive was not proved--- Scope--- Accused was charged that he along with co-accused committed murder of the deceased by inflicting hatchet blow---Motive behind the occurrence was that few days prior to the occurrence, the deceased quarrelled with the accused and also slapped him, as a result whereof, alleged incident took place---Motive set up by the prosecution in the FIR and deposed about it by the complainant had been found unproved---Prosecution case in that regard was vague and could hardly inspire confidence--- Complainant deposed during examination-in-chief that some period prior to the occurrence deceased quarrelled with accused--- Accused persons grappled and deceased slapped accused---Both the accused committed murder of the deceased on that account---During cross-examination, the complainant deposed that he had not witnessed the motive occurrence---No FIR was registered in respect of motive occurrence---Investigating Officer stated that the detail of motive incident was disclosed before him and he reduced it into writing during his investigation---Detail of motive was not described by complainant or his witnesses whereas it was described by the accused---No clear evidence as to the nature of quarrel, its taking place between the deceased and accused, time of quarrel and witnesses of quarrel was available---Motive, as alleged, was an afterthought and had not been proved by any credible evidence---Circumstances established that the prosecution had failed to bring home the guilt of the accused--- Appeal against conviction was allowed, in circumstances.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2016 SCMR 1142 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention--- Appreciation of evidence---Benefit of doubt---Weapon of offence was recovered from the accused---Reliance---Scope---Accused was charged that he along with co-accused committed murder of the deceased by inflicting hatchet blow---Record showed that hatchet had been recovered from accused after ten days of the alleged occurrence---As per FIR, the accused after the incident ran away, however, both the eye-witnesses deposed in their court statements that the accused persons again entered their house---Said fact created doubt about the recovery proceedings---Even otherwise, it did not appeal to reason that the accused might have kept "hatchet" with him intact in order to produce it before the Investigating Officer on his arrest---Accused could not be expected to keep the "hatchet" in the Chhapar of cattle in his house for a long period, when he could have easily disposed of the same---Circumstances established that the prosecution had badly failed to bring home the guilt of the accused---Appeal against conviction was allowed, in circumstances.

Bashir Ahmed alias Mannu v. The State 1996 SCMR 308 rel.

(f) Criminal trial---

----Appreciation of evidence---Principle---If evidence of the prosecution is disbelieved qua co-accused, it could not be believed qua the other in the absence of very strong corroboration.

Akhtar Ali and others v. The 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.

(g) Criminal trial---

----Benefit of doubt--- Principle--- If prosecution story is doubtful, benefit of doubt must go to the accused.

Muhammad Akram v. The State 2009 SCMR 230 rel.

(h) Criminal trial---

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

Nasir Mehboob Tiwana for Appellant.

Muhammad Akhlaq, Deputy Prosecutor General for the State.

Nemo for the Complainant.

YLR 2022 LAHORE HIGH COURT LAHORE 136 #

2022 Y L R 136

[Lahore]

Before Ali Zia Bajwa, J

WARIS---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 46188-B of 2021, decided on 12th August, 2021.

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

----S. 497---Penal Code (XLV of 1860), Ss. 392, 395, 412 & 411---Qanun-e-Shahadat (10 of 1984), Art. 22---Robbery, dacoity, dishonestly receiving stolen property---Bail, grant of---Delayed FIR---Nomination of accused through supplementary statement--- Test identification parade---Scope---Prosecution case was that four accused persons committed robbed cash amount, mobile phone, motorcycle and other documents from the complainant---FIR was lodged with a considerable delay---Accused was nominated in the case through supplementary statement made on the same day when the FIR was lodged without disclosing the source of information---Identification parade of the accused was conducted after his nomination through supplementary statement---Nomination of accused prior to identification parade had diminished the sanctity of such test identification parade---Registration of few other cases against the accused, without conviction, did not disentitle the accused from the concession of bail if his case otherwise fell within the ambit of further inquiry---Investigation of the case was complete and his person was not required to the police for the investigation---Petition for grant of bail was allowed, in circumstances.

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

----S. 497--- Bail--- Supplementary statement---Scope---Where accused is not nominated in FIR rather nominated through supplementary statement without disclosing the source of information, it becomes a matter of further inquiry.

Ch. Mahmood Alam for Petitioner.

YLR 2022 LAHORE HIGH COURT LAHORE 147 #

2022 Y L R 147

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

Mst. SHARIFAN MAI (deceased) through L.Rs. and others---Petitioners

Versus

KHUDA BAKHSH and others---Respondents

Civil Revision No. 337-D of 2004, heard on 12th October, 2021.

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

----S. 123---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Suit for declaration---Suit property was allegedly given by deceased to his wife on basis of acknowledgement deed of dower in his life time---Tamleeknama---Petitioner / plaintiff in possession---Respondents / defendants (sons and daughters of deceased's brothers/sisters) contended that deceased was a cancer patient/suffering from Marz-ul-Mout at the time of acknowledgement deed---Suit was decreed but appeal was allowed---Validity---Respondents/defendants, in cross-examination, could not bring on record anything contrary to deposition of petitioner's witnesses---Evidence of scribe of acknowledgement deed and notary public/Advocate was relevant---Both witnesses were independent and had no interest with the plaintiff or suit property---Notary public deposed that he verified the said deed; that deed bore his seal and signature; that he read-over the document to deceased; that deceased himself appeared being physically fit/healthy; that he incorporated the deed in his register, pasted copy of identity card of deceased; that he took thumb impressions of two ladies and the deceased, took signatures of witnesses---Scribe deposed as witness and identified the thumb impression of the deceased---Defence witness was not reliable, was interested witness and his deposition could not be relied upon---Respondents failed to prove that the deceased was cancer patient and was suffering from Marz-ul-Mout at the time of execution of the documents and died during that period---Evidence of defendants was hearsay not having source of direct knowledge---Deceased had two wives and died issueless---Deceased equally distributed 4/4/ kanal amongst his two wives out of his ownership of land measuring 11 kanals 14 marlas---Respondents did not plead that the said deed was anti-dated/prepared after the demise of deceased---Appellate Court had erred in law while allowing the appeal---Revision petition was accepted accordingly.

(b) Islamic law---

----Dower---Hiba-bil-ewaz---Nature and scope--- Ordinarily, in transfer of immoveable property by a Muslim husband to his wife in lieu of dower, there were two distinct gifts, one by each party to the other---Husband transfers the property by gift, while wife makes the gifts of her, such transaction is essentially "hiba-bil-ewaz"---Such principle is subject to exceptions.

----Dower deed---Immoveable property---Proof---Dower deed was a document not creating / extinguishing right in immovable property and execution of such document thereto only acknowledged the factum of transfer of immovable property in favour of his wife in lieu of dower.

Anwar Khan and 16 others v. Mst. Sahibzada and 3 others 1989 CLC 1327 rel.

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

----S. 129---Transfer of property by a Muslim in lieu of dower was a gift (Hiba-bil-ewaz), it did not require registration under Registration Act, 1908---Neither any writing would be required nor any such document acknowledging transfer of property in lieu of dower would require registration.

Mst. Allah Jawai v. Allah Ditta represented by heir PLD 1975 Lah. 1399; Inayat Ullah v. Perveen Akhtar 1985 CLC 1454 and Inayat Ullah v. Perveen Akhtar 1989 SCMR 1871 rel.

(e) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 5---Nikahnama--- Column in Nikahnama indicated that they referred to arrangement that had already been subscribed to by the parties and the record was prepared only to verify the events which had already happened.

Fazal-ur-Rehman v. Mst. Sown Jan and others 1989 SCMR 651 rel.

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

----S. 123---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Gift---Marz-ul-maut, doctrine of---Proof---With regard to the principle governing the applicability of doctrine of marz-ul-mout, the Court was to consider the factors to sustain the conclusion that the impugned transaction was made under such pressure (marz-ul-mout): firstly, was the doner suffering at the time of gift from a disease which was the immediate cause of his death; secondly, was the disease of such a nature or character as to include in the person suffering the belief that death would be caused thereby, or to engender in him the apprehension of death; thirdly, was the illness such as to incapacitate him from the pursuit of his ordinary avocations, a circumstance which might create in the mind of the sufferer an apprehension of death; and fourthly, had the illness continued for such a length of time as to remove or lessen the apprehension of immediate fatality or to accustom the sufferer to the malady.

Noor Muhammad Khan and 3 others v. Habibullah Khan and 27 others PLD 1994 SC 650 rel.

Rahat Masood Tipu, Muhammad Malak Khan Langha and Waqas Ahmad for Petitioners.

Sajjad Hussain Tangra for Respondents.

YLR 2022 LAHORE HIGH COURT LAHORE 169 #

2022 Y L R 169

[Lahore]

Before Safdar Saleem Shahid, J

WAQAR SHAUKAT---Petitioner

Versus

DEPUTY COMMISSIONER, DISTRICT FAISALABAD and 3 others---Respondents

Writ Petition No. 50002 of 2021, decided on 12th August, 2021.

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

----S. 30--- Power of Revenue Officers to enter upon any lands or premises for purpose of measurements, etc.---Pendency of civil suit---Scope---Petitioner sought direction to the Revenue Officer not to demarcate the land, subject matter of the suit filed by him before the Civil Court---Contention of petitioner was that since status quo order was already in field, the steps being taken by Revenue Officer for demarcation of the property were illegal and that he had filed an application before the Revenue Officer requesting him not to demarcate the property in dispute till decision of the suit but the Revenue Officer was bent upon to demarcate the property against the law---Validity---Stay order granted in the suit filed by the petitioner was still in field and if there was any violation thereof, the petitioner had the remedy to move before the Trial Court---As per report of the Local Commission both the parties had encroached upon the land belonging to the Development Authority---Although the report of Local Commission was not binding upon the court, the parties were free to raise objection there against, and if there was anything irregular or illegal about the report, the same could easily be unearthed during the course of cross-examination---Adequate alternate remedy being available, the Constitutional petition was not maintainable---Constitutional petition was also not maintainable because it did not agitate the acknowledged grounds of judicial review i.e. illegality, irrationality, procedural impropriety or proportionality---Constitutional petition was dismissed.

Muhammad Ikram Chaudhry and others v. Federation of Pakistan and others PLD 1998 SC 103 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Alternate remedy---Scope---Resort and recourse to writ jurisdiction can only be made if there is no other adequate remedy available to the petitioner.

----O. XXVI, R. 10---Procedure of Local Commission---Report and depositions to be evidence in suit---Local Commission may be examined in person---Scope---Rule 10 of O.XXVI, C.P.C. provides that the report of Local Commission and evidence taken by him shall form part of the record in a suit and any of the parties to the suit may examine the Local Commission personally in open court touching any of the matters referred to him or mentioned in his report with the permission of the court.

Haji Sharaf Hussain and 5 others v. Haji Tor Gul and 7 others 2011 CLC 543; Abdul Khaliq and 3 others v. Additional District Judge, Minchinabad and 4 others 2011 MLD 1632 and Kh. Abdul Rehman (deceased) through Legal Heirs and others v. Muhammad Farooq Mirza and 5 others 2019 CLC 596 rel.

(d) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Discretionary--- Scope--- Constitutional jurisdiction is equitable and discretionary in nature and cannot be invoked to defeat the provisions of validly enacted statutory provision.

President, All Pakistan Women Association, Peshawar Cantt. v. Muhammad Akbar Awan and others 2020 SCMR 260 ref.

Ch. Asif Raza Koli for Petitioner.

YLR 2022 LAHORE HIGH COURT LAHORE 189 #

2022 Y L R 189

[Lahore (Multan Bench)]

Before Sardar Ahmad Naeem andShakil Ahmad, JJ

ZAHOOR AHMAD and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 362-J of 2018, 278 of 2016, Criminal Revision No. 439 of 2015 and Murder Reference No. 88 of 2015, heard on 8th June, 2021.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Contradictions---Accused was charged for committing murder of the brother of the complainant by firing---Non-payment of outstanding amount by the deceased was motive behind the occurrence---Ocular account of the occurrence had been furnished by the brother/ complainant and behnoi of the deceased being eye-witnesses---Both the eye-witnesses were not natural witnesses---Though, they claimed that they had seen the incident but had failed to explain one injury which was on the medial aspect of right thigh as it was exit wound---Both the eye-witnesses in their statements recorded during trial, had described that two injuries were sustained by the deceased by making dishonest improvements to bring the case of prosecution in line with the medical evidence---Said witnesses had specifically attributed that fire shots made by the accused landed on the right side below belly and near thigh joint of the deceased---Eye-witnesses lifted/shifted the deceased through Rescue 1122 and, thus, their clothes might have stained with blood but neither any such clothes were taken into possession nor produced during the investigation---Medical Officer held the autopsy and observed three injuries including two entry wounds and the other was exit of injury---During the cross-examination, the Medical Officer admitted that he observed no corresponding holes on the clothes of the deceased---Had he seen any hole, he would have definitely mentioned the same in post-mortem examination report---Statement of said witness further reflected that it was possible that fire shots strike the body of the deceased in naked condition---Medical evidence, therefore, contradicted the ocular account---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances. [pp. 194, 195] A & E

Muhammad Akram v. The State and others 2016 SCMR 2081; Nasrullah alias Nasro v. The State 2017 SCMR 724; Nadeem alias Kala v. The State 2018 SCMR 153 and Najaf Ali Shah v. The State 2021 SCMR 736 rel.

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

----Ss. 302(b) & 34---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---With-holding best evidence---Scope---Accused was charged for committing murder of the brother of the complainant by firing---Complainant was a regular practicing lawyer but he did not report the incident to police---Place of occurrence was a Mor, which was busy area surrounded by various shops and houses---Occurrence took place in front of a shop but none from the surrounding was examined during trial---Investigating Officer was also informed regarding the occurrence by someone---Investigating Officer thereafter, reached the Hospital, however, did not examine any personnel of 1122---Eye-witnesses claimed their presence at the time and place of occurrence along with the deceased but the story described by them did not fit in with the probabilities---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Saleem v. The State 2010 SCMR 374 rel.

----Ss. 302(b) & 34---Qatl-i-amd, common intention--- Appreciation of evidence---Benefit of doubt---Motive not proved---Scope---Accused was charged for committing murder of the brother of the complainant by firing---Reasons for the outbreak of the incident/episode was an altercation which took place between the deceased and the accused prior to the occurrence at a Adda but none from the said Adda was examined to prove the earlier altercation--- Complainant attempted to explain that fact that he was told by the deceased regarding the incident of motive---Even the trial court observed that failure to prove motive was not fatal to the prosecution in view of the confidence inspiring evidence of the eye-witnesses meaning thereby that no categorical finding was recorded by the Trial Court regarding motive---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable 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---Weapon of offence and crime empties were recovered---Scope---Accused was charged for committing murder of the brother of the complainant by firing---Recovery of pistol and report of Forensic Science Agency were useless as number of magazine of the pistol dispatched the Forensic Science Agency was 27665, whereas, recovery memo of the pistol suggested number of the magazine as 27685, which was altogether different---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Prince Rehan Iftikhar Sheikh for Appellant (Zahoor Ahmad).

Malik Mudassar Ali, Deputy Prosecutor General for the State.

Sardar Ashfaq Ahmad for the Complainant (Muhammad Moeen Khan).

YLR 2022 LAHORE HIGH COURT LAHORE 209 #

2022 Y L R 209

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

Dr. NISAR AHMED CHAUDHARY through Special Attorney---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary Colonies, Lahore and 12 others---Respondents

Writ Petition No. 65143 of 2019, heard on 24th March, 2021.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S.10---Lease of Government Land---Purchase of State land---Resumption of leased land--- Scope--- Petitioner challenged the vires of order passed by Member Colonies, Board of Revenue Punjab whereby his request for restoration of allotment/conveyance deed was declined---Validity---Petitioner had started his demand for purchase of just 5½ kanals of State land in his own Chak, which afterwards increased to 31½ kanals and lastly to 57½ kanals in another revenue estate---Most valuable chunk of land facing the Highway was thrown away to him just for peanuts---Petitioner had sought lease of the land but the Secretary Finance, who had no business with the private project, proposed permanent transfer of the State land so that a blue-eyed could be accommodated over and above his own request---Execution of conveyance deed for agricultural purposes was another violation towards the alleged specific sale for construction of a purported Hospital---Petitioner who had voluntarily undertook twice to complete the project i.e. construction of a hospital within extended time of his own choice had failed to install even a brick---Constitutional petition was dismissed, in circumstances.

(b) Administration of justice---

----Conduct of the litigant before court of law is very relevant to award or refuse the relief claimed for.

Waqar A. Shaikh and Syed Faisal G. Miran for Petitioner.

Arshad Jahangir Jhojha, Addl. A.G. and Saqib Haroon, A.A.G. for Official Respondents Nos. 1 to 8 and 11.

Tahir Mahmood Mughal for Respondent No.9.

Sherbaz Ali, Legal Adviser for PESSI/Respondent No.12.

Zubair Ahmad Virk for Respondent No.10.

Nadeem Ahmad Sheikh for Applicants (in C.M. No.8 of 2020).

YLR 2022 LAHORE HIGH COURT LAHORE 280 #

2022 Y L R 280

[Lahore]

Before Ali Zia Bajwa, J

FARAH MANSOOR---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION CITY KAMOKY and another---Respondents

Criminal Miscellaneous No. 39238 of 2021, decided on 25th June, 2021.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus---Scope---City Police Officer (C.P.O.) had appeared before the Court and had submitted detailed report, according to which a case was registered under Art. 155-C of Police Order, 2002 read with S. 342, P.P.C. against the Investigating Officer---Concerned S.H.O. (Station House Officer) was suspended and inquiry was initiated against him---Letter for explanation of poor supervision was also issued to the D.S.P. (Deputy Superintendent of Police) of concerned circle---Report was found by the High Court to be satisfactory---High Court appreciated strict and prompt action against the delinquent police officials involved in illegal detention of a woman aged 72 years---Show cause notice issued to the S.H.O. was withdrawn on his explanation that he was not aware about the detention---Petition having borne fruit was disposed of accordingly.

Muhammad Shoaib Khokhar for Petitioner.

Hafiz Muhammad Asghar, Deputy Prosecutor General.

YLR 2022 LAHORE HIGH COURT LAHORE 313 #

2022 Y L R 313

[Lahore]

Before Abid Hussain Chattha, J

MUHAMMAD BASHIR---Petitioner

Versus

IRSHAD BEGUM and 2 others---Respondents

Civil Revision No. 3687 of 2021, decided on 6th August, 2021.

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

----Arts. 64, 70, 72, 117 & 118---Petitioner contented that respondents in connivance with the revenue officials got the mutation sanctioned by showing themselves as legal heirs (wife and daughter) of his deceased brother---Question was whether one of the respondent was the second wife of deceased and if so, whether another respondent was born out of their wedlock---Held, that petitioner as witness deposed that deceased never got married and died issueless---Petitioner was never cross-examined regarding the said statement, hence the same was deemed admitted--- Evidence tendered by Petitioner's / plaintiff's was straight forward / confidence inspiring and withstood the test of cross-examination---Deposition that deceased was issueless was established, hence the initial onus was duly discharged by the petitioner which shifted upon the respondents---Evidence of respondents/defendants was full of contradictions---Contents of the documents tendered by respondents, i.e. birth certificate, school leaving certificate, Nikah Nama, Computerised National Identity Cards (CNICs); were mutually-destructive with respect to the age and marriage of the respondents which cast serious doubts regarding the veracity of their evidence---Petitioner filed the suit immediately after attestation of the impugned mutation---CNICs of respondents were issued after institution of the suit which established that the same were prepared with the sole objective to establish the alleged relationship with deceased---No old CNIC or any other document prepared during the life time of deceased was on record to demonstrate their relationship---No concerned officer regarding preparation of the CNICs was examined to prove the same---Nikahnamas being the material document to prove the marriage and parentage of respondents, respectively, were not proved through Nakah Khawan or witnesses---Plaintiff's witness specified that the respondents took possession the suit property after the impugned mutation---Khasra Girdawari showed that possession over the suit property belonged to deceased in his life time and not to respondents---Revision petition was allowed accordingly.

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

----Art. 113---Cross-examination, facts unrebutted in---If a material fact was deposed in examination-in-chief and the same was not subjected to cross-examination, it should be deemed to be admitted.

Hafiz Tassaduq Hussain v. Lal Khatoon and others PLD 2011 SC 296 ref.

----Art. 64--- Relationship--- Proof---Independent witness being a distant cousin having no personal interest in the property who knew the relationship of the inter se members of the family/parties to the suit, possessed special means of knowledge of the family affairs---Such witness fulfilled the test of Art. 64 of the Qanun-e-Sahadat, 1984.

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

----Arts. 70 & 72---Document, self-contradictory contents of--- Oral evidence, negated by contents of documents--- Proof--- Documentary evidence must be given more weight than oral evidence---If the contents of the documents produced were self-contradictory to each other and also in negation to their own oral evidence with respect to claim of the party, the same could not be relied upon in order to reach a just and fair decision of the case.

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

----S. 115---Revision---Limitation not provided---Jurisdiction---When merits of the case demanded that challenged order be set aside, High Court would not avoid hearing the same under S.115 of the Civil Procedure Code, 1908 for which no limitation was provided, merely because the application was filed by somebody who was bound by limitation.

Khalid Pervaiz Warraich for Petitioner.

Tazheer Shahzad Tarar for Respondents Nos. 1 and 2.

Respondent No. 3 Proceeded ex-parte on 01.06.2021.

YLR 2022 LAHORE HIGH COURT LAHORE 336 #

2022 Y L R 336

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

ALLAH DITTA and others---Petitioners

Versus

MUHAMMAD ANWAR and others---Respondents

Civil Miscellaneous No. 3027 of 2015 in Civil Revision No. 1200 of 2002, decided on 6th September, 2021.

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

----S. 12(2)---Qanun-e-Shahadat (10 of 1984), Art. 31---Fraud and collusion---Maxim "Nullus Commodum Capere Potest De Injuria Sua Propria" (No man shall take advantage of his own wrong)---Certain respondents instituted suit for possession through pre-emption regarding the suit property against one respondent which was dismissed by the Trial Court on the ground of non-fulfilment of necessary Talbs in accordance with law---Appeal was also dismissed by appellate Court---Said respondents filed civil revision before High Court---During pendency of the said civil revision, said respondents settled their disputes by way of compromise and some of the respondents withdrew their revision by filing a written application---On basis of such compromise and withdrawal, High Court decreed their suit for possession through pre-emption---One respondent transferred the suit property through oral mutation of exchange in favour of predecessor of the applicants of instant application---Applicants through the said application under S. 12(2), C.P.C. challenged the validity of the said order of High Court---Validity---Predecessor of applicants got the suit property through mutation of exchange and his rights were directly affected through the judgment/ order of High Court whereby the suit of the respondents was decreed on the basis of compromise, therefore, applicants had every right to file the application under S.12(2) of Civil Procedure Code, 1908---Respondent who transferred the suit property during the proceedings of prior revision petition moved an application before this High Court whereby he acknowledged the sanction of mutation of exchange meaning thereby that at the time of execution of special power of attorney at the time of moving civil petition, and at the time of the decision of the revision petition on the basis of compromise, said respondent was not the owner of the suit property and had not possessed any interest in the suit property, therefore, his admission or statement regarding acceptance of the civil revision had no sanctity in the eye of law---Respondents deliberately/ knowingly concealed material facts regarding appeals, revisions, and revision of revision (ROR) in Board of Revenue from High Court while getting a decision of the civil revision on the basis of compromise---Active concealment of that material facts also tantamount to fraud and misrepresentation---Respondent with mala fide intention concealed material facts before High Court in order to give benefit to the rest of the respondents---Revision petition was got decided on the basis of compromise collusively, therefore, the mutation of exchange sanctioned in favour of predecessor of applicant was not hit by the principle of lis pendens---Respondents were trying to undo the transaction of exchange in order to get back the property through process of the Court, and infact attempting to take advantage of their own fraud---High Court allowed the application and ordered the Civil Revision be restored and be set down for hearing in due course---Costs of present litigation to be borne by the respondents.

Fazal Karim through Legal Heirs and others v. Muhammad Afzal through legal heirs and others PLD 2003 SC 818; Muhammad Zubair v. Muhammad Tahir Shafique and another PLD 2013 Lah. 154; Muhammad Yaqub and another v. Mahboob Ali Qureshi 1998 PLC (C.S.) 11 and Sunni View Cooperative Housing Society v. Irshad Hussain and another 1993 CLC 2336 ref.

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

----S. 12(2)---Application under S.12(2), C.P.C.---Locus standi---Word "person"---Scope---If the intention of the lawmaker had been to restrict the right of filing application under S.12(2) of Civil Procedure Code, 1908, only to the person who was party to the suit, then the word "party" ought to have been used.

Khawja Muhammad Yousaf v. Federal Government and others 1999 SCMR 1516 and Ch. Jalal ud Din v. Mst. Asghari Begum 1984 SCMR 584 ref.

----S. 52---Lis pendens---Pre-requisites---Whoever acquired property during the pendency of action was held bound by the judgment that might be made against the person from whom he derived his title even though such a purchaser was not a party to the action and had no notice of the pending litigation---Such rule, however, was subject to certain conditions: firstly, the suit must be relating to a specific immovable property in which any rights of the parties were directly and specifically in question; secondly, the suit should be pending at the time when the alienation in favour of the third person had been made; and thirdly, neither the suit itself nor the outcome thereof be collusive, fraudulent and/or was meant to entrap, deceive, and defraud an innocent transferee.

Muhammad Ashraf Butt and others v. Muhammad Asif Bhatti and others PLD 2011 SC 905 ref.

(d) Maxim---

----"Nullus Commodum Capere Potest De Injuria Sua Propria (No man shall take advantage of his own wrong); it will be against the administration of justice that benefit of wrong be given to a wrong doer.

Mian Muhammad Saeed and another v. The Province of West Pakistan and others PLD 1964 SC 572 and Sakhi Jan and others v. Shah Nawaz and another 2020 SCMR 832 ref.

Ch. Abdul Ghani and Miss Farzana Yasmeen for Petitioners.

Mian Tahir Iqbal, Syed Zulfiqar Ali Bukhari, Hafiz Muhammad Riaz Mian and Mirza Aziz Akbar Baig for Respondents.

YLR 2022 LAHORE HIGH COURT LAHORE 359 #

2022 Y L R 359

[Lahore (Multan Bench)]

Before Ali Zia Bajwa, J

SAJJAD HUSSAIN alias SHAKA---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 110-J of 2016 and Criminal Miscellaneous No. 1 of 2020, decided on 14th July, 2021.

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

----S. 426---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Suspension of sentence pending appeal---Scope---Appellant sought suspension of his sentence passed by the trial court in an FIR registered under S. 302, P.P.C.---Appellant was not named in the crime report, which was lodged against the unknown accused---Only evidence available on record against the accused was wajtakar furnished by paternal uncles of complainant as well as deceased and despite the fact that they were residents of same vicinity, their names were not mentioned in the crime report---No identification parade was held in the case---In the absence of any motive for the commission of the alleged offence, the upholding of the sentence imposed upon the appellant in peculiar circumstances of the case required very serious consideration, which could be undertaken at the time of hearing of appeal---Appellant had already undergone sentence of about eight and half years, whereas disposal of main criminal appeal was not within sight in near future---Ground of statutory delay was also available to the appellant---Appellant was neither a hardened nor desperate criminal---Application for suspension of sentence was allowed.

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

----S. 426---Constitution of Pakistan, Art. 9---Suspension of sentence pending appeal---Security of person---Scope---Liberty of a person being precious right, which is also guaranteed under the Constitution coupled with the fact that if after suffering the incarceration in jail, the petitioner is acquitted, how he could be compensated for his incarceration, as there is no reparatory arrangement so far provided in any law including the Cr.P.C. to compensate him for incarceration in prison for years, while to the contrary subsection (3) of S. 426, Cr.P.C. provides that while computing the sentence of convict, the period during which this sentence was suspended and he was released on bail, shall be excluded from the total period of sentence, he has to undergo.

Prince Rehan Iftikhar Sheikh for Appellant.

Malik Mudassar Ali, D.P.G. for the State.

Complainant in person.

YLR 2022 LAHORE HIGH COURT LAHORE 367 #

2022 Y L R 367

[Lahore (Multan Bench)]

Before Ch. Muhammad Iqbal, J

ALLAH DITTA through L.Rs. and another---Petitioners

Versus

Mst. AMEERAN MAI through L.R. and 3 others---Respondents

Civil Revision No. 46-D of 2019, heard on 4th March, 2021.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Exclusion of legal heir---Scope---Plaintiff claimed that she was real daughter of original owner of suit land but she was deprived from her share in the estate of her father merely on the basis of some customs prevailing at that time---Trial Court and Appellate Court concurrently decreed the suit---Validity---Parties to lis were Muslims by faith and followers of Quran and Sunnah---Rights and shares of each and every Muslim inheritor in the estate of his/her deceased propositus was absolutely, conclusively and fully described/determined in the Holy Quran which shares were definite in nature---Defendants in contravention of commandments of Allah as well as the law on the subject had illegally deprived the plaintiff from her accrued share in the estate of her father---Concurrent findings of fact were against the petitioners which did not call for any interference by High Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction---Revision petition was dismissed with costs throughout.

Surah tul Nisa Ayat Nos. 7 to 11; Surah tul Nisa; Surah tul Nisa Sahi Bukhari Sharif Vol.III, Page No.606 Chapter No.922; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Farhan Aslam and others v. Mst. Nuzba Shaheen and another 2021 SCMR 179 and Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469 rel.

Malik Sharif Ahmad for Petitioners.

Muhammad Suleman Bhatti, Iftikhar Majid and Saqib Aziz for Respondents Nos. 1 and 2.

Malik Muhammad Tariq Rajwana for Respondent No.3.

YLR 2022 LAHORE HIGH COURT LAHORE 378 #

2022 Y L R 378

[Lahore (Multan Bench)]

Before Asim Hafeez, J

SAIFAL through legal heirs and another---Petitioners

Versus

MEMBER BOARD OF REVENUE and others---Respondents

Writ Petition No. 12330 of 2012, decided on 31st December, 2020.

Colonization of Government Lands (Punjab) Act (V of 1912)---

----S. 10 (3)---Cancellation of lease---Entitlement of grant/allotment---Scope---Petitioners claimed to have entitlement to more land but authorities resumed the land and cancelled lease---Validity---No legally enforceable right was vested in petitioners, in whose favour no valid allotment or lawful grant survived after year, 1982---Petitioners were required to make improvements for the purposes of cultivation, which was an integral part of terms of grant---Authorities failed to appreciate legality, relevance and effect of orders of permanent allotment of land---Alleged claim/entitlement regarding prospective proprietary rights, in the wake of cancellation of allotment, was merely a figment of imagination---No proprietary rights could be claimed in view of the factum of cancellation/expiry of term of lease---High Court declined to interfere in the order of cancellation of allotment as there was no illegality requiring judicial review jurisdiction--- Constitutional petition was dismissed in circumstances.

Masood Rahim and 7 others v. Abdul Majeed and 9 others 2009 MLD 106 ref.

Abdul Rashid Sheikh for Petitioners.

Ch. Ghulam Din Aslam for Respondents Nos.3 to 8.

YLR 2022 LAHORE HIGH COURT LAHORE 390 #

2022 Y L R 390

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

GHAZANFAR ALI and others---Petitioners

Versus

Malik MUHAMMAD ANSAR---Respondent

Civil Revision No. 1330 of 2015, heard on 7th June, 2021.

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss. 6 & 7---Superior/preferential right of pre-emption---Partially sharing boundaries of adjoining land---Plaintiff pre-empted the sale on ground of being Shafi Khalit and Shafi Jar---Validity---Where sharing of boundaries of both the lands: viz. owned by pre-emptor and under pre-emption, was partial or deficient, it was not enough to meet with the requirement of both the properties being 'contiguous' to each other---Pre-emptor possessed meager share in three khasras adjoining to pre-emptive property--- Such pre-emptor alone could not pre-empt sale of suit property for himself, however, suit of pre-emptor could succeed if all other co-sharers had also joined him in claiming preferential right of pre-emption---Revision petition allowed accordingly.

Allah Ditta v. Ali Muhammad PLD 2016 SC 73; Iftikharuddin v. Jamshed K. A. Karker and 11 others PLD 1995 Kar. 608 and Iftikhar Mehmood v. Abdul Latif and others 2009 CLC 462 ref.

(b) Punjab Pre-emption Act (IX of 1991)---

----S. 6---Superior/preferential right of pre-emption---Co-sharers in un-abutted property---Equal right of co-sharers---Shafi Khalit and Shafi Jar---Scope---Vendees having become sharers in rest of three un-abutted khasras might safely defeat the right of pre-emption in pre-emptive property.

Mst. Gul Rangeena v. Khushal Khan 1999 CLC 831; Muhammad Iqbal v. Muhammad Gul 2010 CLC 1035 and Muhammad Ayub v. Hazrat Mansha 2006 MLD 1001 ref.

----S. 6---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 18---Pre-emption---Onus probandi---Shafi Khalit and Shafi Jar---Multiple heads vesting right of pre-emption---Burden solely on pre-emptor---Onus probandi was upon the pre-emptor to prove that he, besides being owner of adjoining area, was a participator in amenities and appendages of the sold land.

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

----S. 115--- Revision--- Unanimous judgments of two courts below---Reversal of---Scope---High Court normally hesitate to invoke its jurisdiction to disturb concurrent judgments of the two Courts below, however, where Courts below committed misreading/non-reading of available evidence in unanimously rendering their concurrent findings or those suffered from jurisdictional defect or misapplication of law, then Court could not shut its eyes, rather visitorial/ revisional jurisdiction was vested to it to check or even reverse such findings.

Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568; 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 ref.

Malik Arshad Awan, Mohsan Hanif Ch., Ihsan Ullah and Dr. Saima Hanif Mughal for Petitioners.

Irfan Salamat Ali Bajwa for Respondent.

YLR 2022 LAHORE HIGH COURT LAHORE 424 #

2022 Y L R 424

[Lahore]

Before Muhammad Amjad Rafiq, J

Mst. AZIZ MAI---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 271-J of 2010, decided on 14th June, 2021.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of seven hours in lodging FIR---Scope---Accused was charged for committing murder of seven years old daughter of her brother/complainant by inflicting iron pipe blow---Record showed that the occurrence took place at 7:30 am but the matter was reported to the police with a delay of seven hours and that too on the arrival of police at their own---Such delay had not been explained---Had the witnesses been present, they must have reported the matter to police, particularly when injured died after 2/3 hours---Said delay on the part of prosecution was fatal, which suggested concoction and deliberation and also raised question about the presence of witnesses at the time of occurrence---Circumstances established that the prosecution had failed to bring home guilt of the accused to the hilt---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---Non-recovery of incriminating material---Scope---Accused was charged for committing murder of seven years old daughter of her brother/complainant by inflicting iron pipe blow---Record showed that spot recovery was missing in the case---Cot upon which allegedly the deceased was sitting was not taken into possession nor availability of blood at the crime scene or recovery of blood-stained earth therefrom was shown effected---Investigating Officer had not been produced by the prosecution in support of facts emanating from the registration of FIR routing through post mortem examination till finalization of investigation which was a major lacuna in the case that created gap in complete chain of events--- Circumstances established that the prosecution had failed to bring home guilt of the accused to the hilt---Appeal against conviction was allowed, in circumstances.

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of nine hours in conducting post-mortem---Scope---Accused was charged for committing murder of seven years old daughter of her brother/complainant by inflicting iron pipe blow---Record showed that the time of death was 09:40 am but post-mortem was conducted after about 09-hours and there was no plausible explanation of such delay---Circumstances established that the prosecution had failed to bring home guilt of the accused to the hilt---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---Medical evidence and ocular account---Contradictions---Accused was charged for committing murder of seven years old daughter of her brother/complainant by inflicting iron pipe blow---Medical Officer during examination of the dead body found only one injury i.e., an abrasion 1.5 cm x 0.5 cm---As per prosecution case, the injury was caused with iron blow pipe but the Medical Officer in her cross-examination deposed that possibility of receiving the injury by fall could not be ruled out---Pattern of injury in the case was swelling on the right side of head with clinical fracture of right temporal, frontal and occipital bones about 2 cm from the right ear pinnae, which showed that right, front and back side of skull was involved in the injury which obviously could not be caused with an iron blow pipe used domestically to flame the fire---Such type of injury was regarded as coup or counter coup injury---Injury observed by the Medical Officer during post-mortem was subjacent to the area of impact and not perfectly opposite to it, thus, it could be regarded as coup injury and not a counter coup, but confusion persisted that an injury with iron blow pipe could cause a simultaneous fracture of temporal, frontal and occipital bones, obviously not---If injury was caused by fall then there must be a counter coup injury which was missing in the case---However, it was probably due to the reason that bones of child of that age were soft and elastical and injuries usually caused greenstick fractures, thus, there must be depressed fracture in the case but Medical Officer observed otherwise---Injury probably was sustained when head struck against a hard surface, i.e., by fall, yet from a considerable height--- Investigating Officer didn't appear as witness to prove that there was hard surface at the place of occurrence---Hitting of blow pipe with force could not cause 1.5 cm x 0.5 cm injury, therefore, medical evidence contradicted the ocular which made the story of prosecution doubtful---Circumstances established that the prosecution had failed to bring home guilt of the accused to the hilt---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence--- Reliance---Scope---Accused was charged for committing murder of seven years old daughter of her brother/complainant by inflicting iron pipe blow---Record showed that the accused was arrested on the next day of occurrence---Iron blow pipe recovered at the instance of the accused was not blood stained, thus, there was no report of the Chemical Examiner---Recovery was inconsequential rather adverse to the prosecution---Circumstances established that the prosecution had failed to bring home guilt of the accused to the hilt---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---Accused was charged for committing murder of seven years old daughter of her brother/complainant by inflicting iron pipe blow---Medical Officer had observed that the scalp was injured and hematoma was present but no blood spots were found on any article or place at the crime scene---Even no bandage was shown applied on the wound of the deceased---Nothing was available to prove the place of occurrence in the case---Police Constable who escorted the dead body had only joined the complainant party in the hospital, therefore, link of dispatching the injured from the crime scene to hospital was also missing which was fatal for prosecution, particularly when injured remained alive for 2 to 3 hours---Circumstances established that the prosecution had failed to bring home guilt of the accused to the hilt---Appeal against conviction was allowed, in circumstances.

(g) 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 witness---Effect---Accused was charged for committing murder of seven years old daughter of her brother/complainant by inflicting iron pipe blow---Mother of the deceased being natural witness was not produced before the trial court though was present when the occurrence took place---Presence of mother of deceased in the hospital with dead body was also not denied by the prosecution witnesses, it seemed that the prosecution had withheld the natural witness, therefore, an adverse inference could be drawn in the circumstances--- Circumstances established that the prosecution had failed to bring home guilt of the accused to the hilt---Appeal against conviction was allowed, in circumstances.

(h) 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 seven years old daughter of her brother/complainant by inflicting iron pipe blow---Motive behind the incident was stated to be the dispute over turn of water---Motive alleged by the complainant/prosecution had not been proved---Admittedly, turn of water was joint between the parties---No witness was produced to prove the early morning altercation which took place prior to the occurrence over turn of water---Prosecution case lacked information of the circumstance which was immediate or remote cause of occurrence---Circumstances established that the prosecution had failed to bring home guilt of the accused to the hilt---Appeal against conviction was allowed, in circumstances.

Muhammad Akbar Khan for Appellant with the appellant in person.

Ms. Noshi Malik, Deputy Prosecutor General for the State.

Rana Nadeem Ahmad for the Complainant.

YLR 2022 LAHORE HIGH COURT LAHORE 436 #

2022 Y L R 436

[Lahore (Multan Bench)]

Before Sadaqat Ali Khan and Muhammad Tariq Nadeem, JJ

MUHAMMAD YAR and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 78245-J of 2017 and Murder Reference No. 377 of 2017, heard on 1st June, 2021.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of two hours and forty five minutes in lodging the FIR---Scope---Accused were charged for committing murder of the wife of complainant and injuring the complainant by firing, who died later---Motive behind the occurrence was a dispute over land between the parties---Record showed that the occurrence in the case took place at 05:30 p.m. near a ground and the matter was reported to the police at 08:15 p.m.---Distance between police station and the place of occurrence was eleven kilometres---Two hours and forty-five minutes delay took place in reporting the crime to the police without there being any plausible explanation---Two witnesses while appearing before the Trial Court to furnish ocular account did not utter even a single word about the said delay---Said delay in setting the machinery of law into motion spoke volumes against the veracity of prosecution version--- Circumstances established that the prosecution had failed to prove its case against the accused beyond the shadow of doubt---Appeal against conviction was allowed, in circumstances.

Altaf Hussain v. The State 2019 SCMR 274 rel.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Presence of witnesses at the spot doubtful---Chance witnesses---Scope---Accused were charged for committing murder of the wife of complainant and injuring the complainant by firing, who died later---Ocular account of the incident had been furnished by son and brother of the deceased---According to the prosecution own story the accused persons intended to eliminate said witnesses but no explanation had been given, why they were spared and murdered old aged lady and her husband---Presence of the witnesses at the time and place of occurrence was not believable because in the site plan of the place of occurrence no play ground had been shown---Said witnesses were also closely related to the deceased and were chance witnesses, had they been present at the place of occurrence they must have sustained injuries at the hands of accused party, because according to the prosecution's own version they were the real target and even empty handed and within the range of accused persons attack---Reasons given by the witnesses for their presence at the spot at the relevant time did not appeal to a prudent mind---Circumstances established that the prosecution had failed to prove its case against the accused beyond the shadow of doubt---Appeal against conviction was allowed, in circumstances.

Mst.Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 rel.

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of the wife of complainant and injuring the complainant by firing, who died later---Record showed that FIR was lodged at 08.15 p.m., but perusal of statement of complainant (since deceased) showed that Investigating Officer after getting information of occurrence reached at the Hospital, where he met the complainant(since deceased),recorded his statement and prepared the injury statements of deceased lady and complainant/injured (since deceased) at 07.15 a.m.---Injury statement of complainant and deceased lady depicted that FIR number had already been mentioned---If the injury statements were prepared at 07.15 pm then how number of FIR could be mentioned on the said documents, which spoke volumes regarding the prosecution story---Circumstances established that the prosecution had failed to prove its case against the accused beyond the shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 324 & 34---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Dying declaration---Accused were charged for committing murder of the wife of complainant and injuring the complainant by firing, who died later---Record showed that initially,the FIR was got registered on the statement of complainant (since deceased)---Complainant (since deceased) was injured during the occurrence and his medico legal certificate was issued on the day of occurrence and he passed away after about ten days of the occurrence at the hospital---Prosecution had pressed hard that beside ocular account of two eye-witnesses there was overwhelming evidence in the shape of statement of complainant (since deceased) which had become now a dying declaration and his statement had much credence and legal worth---Circumstances established that the prosecution had failed to prove its case against the accused beyond the 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 always considered a strong piece of evidence but at the same time it had to be seen that the same rang true or not.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt--- Contradiction in the statement of complainant and Investigating Officer---Scope---Accused were charged for committing murder of the wife of complainant and injuring the complainant by firing, who died later---Complainant (since deceased)involved two persons in the alleged occurrence, whereas, Investigating Officer had categorically stated in his cross examination that said persons were not found involved in the case---Said fact also forced to draw an inference that the statement of complainant (since deceased) had no legal worth---Circumstances established that the prosecution had failed to prove its case against the accused beyond the shadow of doubt---Appeal against conviction was allowed, in circumstances.

Mst. Zahida Bibi v. The State PLD 2006 SC 255 and Muhammad Ameer and another v. Riyat Khan and others 2016 SCMR 1233 rel.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt--- Ocular account and medical evidence---Contradictions---Scope---Accused were charged for committing murder of the wife of complainant and injuring the complainant by firing, who died later---Site plan of the place of occurrence showed that point No. 1 was the place where the lady deceased was alleged to be present and sustained firearm injury at the hands of accused, whereas, point No.3 was the place from were accused made fire shot upon lady deceased---Distance from point No.1 to point No.3 had been mentioned as fifteen feet, whereas, Women Medical Officer had noted blackening on one injury on the body of lady deceased, which was allegedly attributed to co-accused, thus, ocular account furnished by the eye-witness was not synchronized with the medical evidence which clearly contradicted the statements of the eye-witness---Circumstances established that the prosecution had failed to prove its case against the accused beyond the shadow of doubt---Appeal against conviction was allowed, in circumstances.

Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812 and Abdul Jabbar and another v. The State 2019 SCMR 129 rel.

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

----S. 342---Statement of accused under S.342, Cr.P.C.---Scope---Statement of accused person recorded under S. 342, Cr.P.C. is to be accepted or rejected in its entirety.

Azhar Iqbal v. The State 2013 SCMR 383 rel.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt--- Motive was not proved---Scope---Accused were charged for committing murder of the wife of complainant and injuring the complainant by firing, who died later---Prosecution case was that the motive behind the occurrence was a land dispute between the parties but the prosecution had failed to produce any documentary proof in that respect---Prosecution had not produced independent evidence with regard to the motive---Circumstances established that the prosecution had failed to prove its case against the accused beyond the shadow of doubt---Appeal against conviction was allowed, in circumstances.

(j) 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 react against a sentence of death on the charge of murder.

Qaddan and others v. The State 2017 SCMR 148; Qurban Hussain v. The State 2017 SCMR 880 and Haq Nawaz v. The State 2018 SCMR 21 rel.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt--- Recovery of weapon of offence at the instance of accused---Reliance---Scope---Accused were charged for committing murder of the wife of complainant and injuring the complainant by firing, who died later---Record showed that rifle 7MM was recovered at the instance of accused, however, the said recovery was inconsequential because report of Forensic Science Agency qua the rifle was only to the extent of mechanical operating condition, as no crime empty was sent for the comparison, the same had no value in the eye of law---Circumstances established that the prosecution had failed to prove its case against the accused beyond the shadow of doubt---Appeal against conviction was allowed, in circumstances.

Akbar Ali and others v. The State and others 2021 SCMR 104 and Muhammad Saleem v. The State 2021 MLD 183 rel.

Mrs. Saiqa Javed for Appellant.

Rai Akhtar Hussain, Deputy Prosecutor General for the State.

Azam Nazir Tarar and Liaqat Bashir Mughal for the Complainant.

YLR 2022 LAHORE HIGH COURT LAHORE 464 #

2022 Y L R 464

[Lahore]

Before Ch. Muhammad Iqbal, J

Rana MUHAMMAD SALEEM---Petitioner

Versus

MINISTRY OF RELIGIOUS AFFAIRS AND INTERFAITH HORMONY

through Secretary, Islamabad and others---Respondents

Writ Petition No. 56805 of 2020, decided on 6th November, 2020.

Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----S. 10---Transfer of Property Act (IV of 1882), Ss. 41, 10 & 11---Validation of certain transfer---Transfer by ostensible owner---Condition restraining alienation---Restriction repugnant to interest created---Scope---Chairman, Evacuee Trust Property Board on filing of reference by the Deputy Administrator treated the suit land as trust property and ordered for its sale---Petitioner, an alleged purchaser of the suit property, claimed that he had purchased the land in question but did not give any information in respect of the sale transaction in his favour---Petitioner had neither appended any alleged title document with the petition nor mentioned any details in that regard---If any person had allegedly transferred the land in question in favour of the petitioner without any title, even then the petitioner had no protection of law---Subsequent purchaser was always saddled with extraordinary responsibility of taking care and caution to deeply scrutinize the genuineness or originality or legality of the title of the vendor before entering into the sale transaction under the principle of caveat emptor subject to incidence of Ss.10 & 11 of the Transfer of Property Act, 1882 and if an infirmity or deficiency subsequently emerged in the title of the vendor that shall always travel with the land and subsequent purchaser was precluded to raise plea of protection under S.41 of the Transfer of Property Act, 1882, rather he had to face consequences of his own negligence for not making a bona fide reasonable investigation into the title of the vendor as required under the principle of caveat emptor---Constitutional petition was dismissed, in circumstances.

Muhammad Yamin and others v. Settlement Commissioner and others 1976 SCMR 489 ref.

Bashir Ahmad and others v. Additional Commissioner with powers of Settlement Commissioner (L) and others 1983 SCMR 1199; Talib Hussain and others v. Member, Board of Revenue and others 2003 SCMR 549; Abdul Hamid v. M.B.R. and others 1994 CLC 1160; Mst.Aziz Bibi and 22 others v. Additional Commissioner (Revenue) with the Powers of Settlement Commissioner Aands), Lahore Division and another 2002 YLR 3268 and Rasheed Ahmad and 2 others v. Additional Commissioner (Rev.) Notified Officer Gujranwala Division, Gujranwala and others 2007 CLC 1801 rel.

Nayyar Abbas Rizvi for Petitioner.

YLR 2022 LAHORE HIGH COURT LAHORE 503 #

2022 Y L R 503

[Lahore]

Before Sadaqat Ali Khan and Muhammad Tariq Nadeem, JJ

EHSAN ULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 194207 of 2018 and Murder Reference No. 109 of 2019, decided on 3rd June, 2021.

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

----Ss. 302(b), 364 & 201---kidnapping or abduction in order to murder, causing disappearance of evidence of offence, or giving false information to screen offender---Appreciation of evidence---Benefit of doubt---Lat seen evidence---Scope---Accused was charged for committing murder of the son of complainant after kidnapping him---Record showed that the prosecution had produced complainant and his brother to prove the last seen evidence---Real brother of complainant had not been able to give any plausible reasoning qua his presence in the house of complainant---Both the said witnesses had not made any effort to inform the police till the recovery of dead body of deceased---Such conduct of said witnesses showed that they had cooked up a false story---Even otherwise, the police had exonerated co-accused in the case---In the corollary of such facts, said witnesses were not trustworthy and confidence inspiring---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

(b) Criminal trial---

----Last seen evidence---Scope---Last seen evidence was always considered to be a week type of evidence, unless corroborated by some other independent piece of evidence.

Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 rel.

----Ss. 302(b), 364 & 201---kidnapping or abduction in order to murder, causing disappearance of evidence of offence or giving false information to screen offender---Appreciation of evidence---Benefit of doubt---Wajtakkar evidence---Scope---Accused was charged for committing murder of the son of complainant after kidnapping him---Prosecution had attempted to prove the case through wajtahhar evidence from the mouth of a witness who stated that he along with other witness had seen the accused and deceased coming out from the sugarcane crops and they both were disturbed and in perplexed condition---Said witness was neighbourer of complainant and he had made dishonest improvements in his statement---Said witness had failed to point out the name of owner of sugarcane crop from where the accused and his co-accused were coming out---Record showed that the prosecution had introduced that witness just to strengthen the story---Said witness failed to give reasons qua his presence near the sugarcane crop from where the accused along with his co-accused were statedly coming out, when he had no agricultural land near the said land---Lead of that witness was a question mark in regards to the genuineness of his proof---Wajtakkar proof was constantly viewed as a powerless sort of proof and not trustworthy without some autonomous supportive piece of proof which was a lot of ailing for that situation---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477; Mudassar Ali Pseudonym Yasri v. The State and others 2019 PCr.LJ 141 and Muhammad Farooq v. The State and another 2020 PCr.LJ 885 rel.

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

----Ss. 302(b), 364 & 201---kidnapping or abduction in order to murder, causing disappearance of evidence of offence, or giving false information to screen offender---Appreciation of evidence---Benefit of doubt---Recovery of dead body and some articles belonging to the deceased---Scope---Accused was charged for committing murder of the son of complainant after kidnapping him---Record showed that accused was arrested and on the same day while in custody of police he got recovered dead body and sleepers of deceased---Record revealed that the alleged recovery of dead body was effected from a sugarcane crop, whereas, Investigating Officer had stated in cross-examination that there was a crop of Charry and sugarcane---Investigating Officer added that he had not referenced that the part of yields of Charry and Sugarcane was broken---Said witness had conceded that he had not referenced the particular regions on which the harvest of Charry and sugarcane were planted and which region was open spot---Further conceded that he neglected to show the stature of yields---In the said conditions, the recuperation of dead body at the pointation of accused from an open spot, which opened to public everywhere, was not trustworthy---Prosecution case was that the accused got recovered clothes of deceased and his two mobile phones from an open place---Places of said recoveries were open places and were accessible for all---So far as memo of identification of motorcycle was concerned, that motorcycle was not recovered in the case while the same was allegedly got recovered by the accused in another case---No engine number, chasis number, registration number and even colour of motorcycle had been mentioned in FIR---Recovery witnesses happened to be real brothers inter-se---No independent witness had been associated qua the said recoveries---Admitted by Investigating Officer that complaint also failed to mention kind and colour of pair of shoes which were worn by the deceased---Said fact had also been admitted by Investigating Officer that in FIR, it had not been mentioned that pair of shoes were lying near the dead body of the deceased----Said recoveries, therefore, were not helpful to the prosecution---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.

Muhmmad Abid v. The State PLD 2018 SC 813 and Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 rel.

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

Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 and Javed Iqbal v. The State PLD 2014 Lah. 62 rel.

(f) Criminal trial---

----Benefit of doubt---Principle---Law of equity demands that it is better that hundred guilty persons should let off but one innocent person should not suffer.

Ayub Masih v. The State PLD 2002 SC 1048 and Najaf Ali Shah v. The State 2021 SCMR 736 rel.

(g) Criminal trial---

----Benefit of doubt---Principle---In case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace.

Azhar Iqbal v. The State 2013 SCMR 383 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Asghar Ali Gill, Mian Shahzad Hussain and Qasim Ijaz for Appellant.

Rai Akhtar Hussain, Deputy Prosecutor General for the State.

Malik Muhammad Ayub Sialvi for the Complainant.

YLR 2022 LAHORE HIGH COURT LAHORE 536 #

2022 Y L R 536

[Lahore]

Before Shahid Karim, J

SUI NORTHERN GAS PIPELINES LIMITED through General Manager, SNGPL---Petitioner

Versus

TAHA SPINNING MILLS LIMITED (CAPTIVE POWER GENERATION UNIT) and another---Respondents

Writ Petition No. 26769 of 2021, decided on 31st May, 2021.

Gas (Theft Control and Recovery) Act (XI of 2016)---

----Ss. 6 & 7---Civil Procedure Code (V of 1908), O. I, R. 10---Complaints and suits for default before Gas Utility Courts--- Procedure---Leave to defend---Court may strike out or add parties---Scope---Petitioner assailed order passed by Gas Utility Court whereby it had deleted the names of two defendants from the array of defendants---Validity---Such course was not permissible and the Gas Utility Court was to decide the application for leave to defend and prior to that no proceedings unilaterally and without any application having been filed, could be commenced by the Gas Utility Court to strike out the parties from the plaint---Impugned order was set aside---Constitutional petition was allowed and the Gas Utility Court was directed to proceed to determine the application for leave to defend first and upon that basis pass any further order if at all necessary.

Umer Sharif for Petitioner.

YLR 2022 LAHORE HIGH COURT LAHORE 587 #

2022 Y L R 587

[Lahore (Multan Bench)]

Before Muhammad Tariq Nadeem, J

ABDUL MAJEED alias CHEETA---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No. 38-J of 2013, heard on 23rd June, 2021.

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

----Ss. 302(b), 394 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Benefit of doubt---Supplementary statement--- Scope---Accused was charged that he along with co-accused tried to snatch motorbike from the complainant party, on resistance, accused party made firing upon them, due to which one person died and two persons sustained injuries---As per indictment's case, three obscure blamed people had submitted the event---Arraignment witnesses had not expressed that they had seen the essences of the aggressors, even highlight of the culprits had not been referenced---Case remained untraced---After about 09 months of the event, the complainant got recorded his valuable assertion accessible on record, wherein he selected the current accused alongside two other as suspects---Notwithstanding, no wellspring of their contribution had been referenced in supplementary statement---Courts had consistently censured such sort of statements, which were made with the reason to reinforce the instance of the indictment at the command of the police authorities or some other ulterior intentions to get the suspect sentenced by any means necessary was consistently censured by Courts---Such statement had never been valued for the equivalent being untimely idea---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside the convictions and sentences recorded by the Trial Court.

Kashif Ali v. The Judge Anti-Terrorism, Court-II, Lahore and others PLD 2016 SC 951 and Akhtar Ali and others v. The State 2008 SCMR 6 rel.

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

----Ss. 302(b), 394 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Benefit of doubt---Night time occurrence---Source of light---Scope---Accused was charged that he along with co-accused tried to snatch motorbike from the complainant party, on resistance, accused party made firing upon them, due to which one person died and two persons sustained injuries---Occurrence took place at 7:00 p.m. in December, meaning thereby that the occurrence took place in the darkness and that fact was also admitted by witnesses that occurrence took place after the Maghrib time---Neither in the FIR nor in the site plan, source of light had been described---Investigating Officer had not taken into possession any source of light---Prosecution failed to establish the fact of such availability of light source and in absence of their inability to do so, the existence of such a light source could not be presumed---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside the convictions and sentences recorded by the Trial Court.

Gulfam and another v. The State 2017 SCMR 1189; Arshad Khan v. The State 2017 SCMR 564 and Azhar Mahmood and others v. The State 2017 SCMR 135 rel.

----Ss. 302(b), 394 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Benefit of doubt---Test identification parade---Scope---Accused was charged that he along with his co-accused tried to snatch motorbike from the complainant party, on resistance, accused party made firing upon them, due to which one person died and two persons sustained injuries---Allegedly, the accused was identified by the eye-witnesses during identification parade, which was conducted under the supervision of Judicial Magistrate---First Information Report showed that the culprits had not been nominated and were mentioned as unknown and no features of the culprits had been recorded in the FIR---Undeniably, complainant was not eye-witness of the alleged occurrence and the story was told to him by witnesses, even then police got identified the accused persons in the identification parade from complainant---When the accused and his co-accused had already been nominated through supplementary statement by giving their names, there was no occasion to hold test of identification parade---Identification parade, in circumstances, became highly doubtful and could not be relied upon as the same was not held in accordance with law---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside the convictions and sentences recorded by the Trial Court.

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

----Ss. 302(b), 394 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Delay in conducting the test identification parade---Effect---Accused was charged that he along with his co-accused tried to snatch motorbike from the complainant party, on resistance, accused party made firing upon them, due to which one person died and two persons sustained injuries---Record showed that the identification parade was held with the delay of ten days after the arrest of the accused---Said delay created a lot of doubt regarding the identification parade as the witnesses had various opportunities to see the accused person---Prosecution witnesses, even if they were present at the scene of occurrence, were not in a position to identify the accused owing to the darkness of a winter night---Identification parade had no evidentiary value in the eyes of law and it could not be used against the accused as a corroborative piece of evidence---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside the convictions and sentences recorded by the Trial Court.

Muhammad Afzal alias Abdullah v. The State and others 2009 SCMR 436; Javed Khan alias Bacha and another v. The State and another 2017 SCMR 524 and Sabir Ali alias Fauji v. The State 2011 SCMR 563 rel.

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

----Ss. 302(b), 394 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Benefit of doubt---Blatant and dishonest improvements made by witnesses---Scope---Accused was charged that he along with co-accused tried to snatch motorbike from the complainant party, on resistance, accused party made firing upon them, due to which one person died and two persons sustained injuries---Witnesses had made blatant and dishonest improvements to their earlier statements----First Information Report showed that general role was attributed to the accused persons that they made burst with their Kalashnikovs which hit the victims---No features were described in their statements under S.161, Cr.P.C., whereas while appearing before the Trial Court, the improvements were made with respect to role of accused persons and their features---Witnesses thus were not worthy of reliance because they made dishonest improvements in their statement on a material aspect of the case in order to fill the lacunas of the prosecution case or to bring their statement in line with the other prosecution evidence---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside the convictions and sentences recorded by the Trial Court.

Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Arif v. The State 2019 SCMR 631 rel.

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

----Ss. 302(b), 394 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Unreliable eye-witnesses---Scope---Accused was charged that he along with co-accused tried to snatch motorbike from the complainant party, on resistance, accused party made firing upon them, due to which one person died and two persons sustained injuries---Prosecution was not certain regarding the culprits---Complainant involved in a supplementary statement two persons on suspicion---Said persons were arrested in the case, investigating officer obtained their physical remand and subsequently prepared their discharge report, which was disagreed by the court of Area Magistrate---Three persons were involved in the case on suspicion---Witness got recorded his supplementary statement before Investigating Officer that "N" was his accused---Other witness also stated before Investigating Officer that one of the suspects was innocent in the case---Said facts had been admitted by Investigating Officer in his cross-examination--- Witnesses, in circumstances, were not truthful witnesses and 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 was allowed and accused was acquitted by setting aside the convictions and sentences recorded by the Trial Court.

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

----Ss. 302(b), 394 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Benefit of doubt---Same set of evidence / witnesses' statements forming basis of acquittal of co-accused persons used to convict accused persons without any independent corroboration---Held, that the co-accused of the present accused to whom effective role in the occurrence was attributed had been acquitted of the charge through the impugned judgment on the same set of evidence---Witnesses of ocular account during their court statements had categorically stated that co-accused made a fire shot which hit the deceased---Role of co-accused was also identical with that of the present accused---Prosaic rule of law and equity that once arraignment witnesses were doubted concerning a co-blamed then, at that point, they could not be depended upon with respect to the next co-charged until and except if it was upheld by any free verifying piece of proof, which was prominently absent in the moment 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.

Nazir Ahmad v. The State 2018 SCMR 787; Haroon Shafique v. The State and others 2018 SCMR 2118 and Shahbaz v. The State 2016 SCMR 1763 rel.

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

----Ss. 302(b), 394 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Statement of injured witnesses---Scope---Accused was charged that he along with his co-accused tried to snatch motorbike from the complainant party, on resistance, accused party made firing upon them, due to which one person died and two persons sustained injuries---Three witnesses had sustained injuries during the same occurrence, but those injuries were only indicative of their presence at the place of occurrence and did not necessarily amount that whatever they spoke was a gospel truth---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside the convictions and sentences recorded by the Trial Court.

Muhammad Pervez and another v. The State 2007 SCMR 670; Amin Ali and another v. The State 2011 SCMR 323 and Nazir Ahmad v. Muhammad Iqbal and another 2011 SCMR 527 rel.

(i) Criminal trial---

----Medical evidence---Scope---Medical evidence could confirm the ocular evidence with regard to the seat of injury, nature of the injury,kind of weapon used in the occurrence but it would not connect the accused with the commission of the offence.

Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53 rel.

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

----Ss. 302(b), 394 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Recovery of crime weapon on the pointation of accused---Reliance---Scope---Accused was charged that he along with co-accused tried to snatch motorbike from the complainant party, on resistance, accused party made firing upon them, due to which one person died and two persons sustained injuries---Kalashnikov along with four live bullets was taken into possession on the pointation of accused from the cattle shed of co-accused---Said recovery was inconsequential as the crime empties and firearm weapon was not sent to the Forensic Science Agency for matching---Unless direct or substantive evidence was brought on record, conviction could not be recorded on the basis of such type of evidence---While conducting the recovery proceedings the Investigating Officer had violated the mandatory provisions of S.103, Cr.P.C.---Even the said recovery was from an open place which was easily accessible to all---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; Muhammad Irshad v. Allah Ditta and others 2017 SCMR 142 and Muhammad Mansha v. The State 2018 SCMR 772 rel.

(k) Criminal trial---

----Benefit of doubt---Principle---Single circumstance creating doubt in a prudent mind, the benefit thereof must accrue in favour of the accused as matter of right and not of grace.

Najaf Ali Shah v. The State 2021 SCMR 736; Mst. Asia Bibi v. The State and others PLD 2019 SC 64; Abdul Jabbar and others v. The State 2019 SCMR 129; Muhammad Akram v. The State 2009 SCMR 230 and Ayub Masih v. The State PLD 2002 SC 1048 rel.

Rana Muhammad Nadeem Kanjo for Appellant.

Muhammad Ali Shahab, D.P.G. for the State.

Complainant in person.

YLR 2022 LAHORE HIGH COURT LAHORE 632 #

2022 Y L R 632

[Lahore]

Before Ali Baqar Najafi and Sardar Muhammad Sarfraz Dogar, JJ

IJAZ ALI---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 63970 of 2020, heard on 8th November, 2021.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence--- Non-production of material witness---Non-production of Register No. XIX---Effect---Accused was allegedly found in possession of 2150 grams of heroin---Muharrir stated that he had received sample and case property from Investigating Officer and that he had deposited it in Malkhana, but the official who had produced it from the Malkhana was not produced by the prosecution---Register No. XIX maintaining the relevant entry was also not produced in evidence---Complainant had admitted in his cross-examination that his caste was Kalyar; that Loona were their political rivals and that the accused was a Loona by caste---Both accused and complainant belonged to the same area---Report of Forensic Laboratory revealed that net weight of the sample was 100.85 grams whereas 108 grams was separated--- High Court by placing reliance on "Ikramullah and others v. The State [2015 SCMR 1002]" convicted the accused to what he had already undergone as he had spent more than one year behind the bars.

Ikramullah and others v. The State 2015 SCMR 1002 and Ghulam Murtaza and another v. The State PLD 2009 Lah. 362 rel.

Malik Rab Nawaz for Appellant.

Muhammad Waqas Anwar, D.P.G. for the State.

YLR 2022 LAHORE HIGH COURT LAHORE 650 #

2022 Y L R 650

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

ASHIQ MUHAMMAD (deceased) through L.Rs.---Appellants

Versus

ABDUL MAJEED and others---Respondents

Regular Second Appeal No. 35 of 2009, decided on 13th October, 2021.

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

----Art. 113---Limitation Act (IX of 1908), S. 22---Pre-emption---Suit for possession through pre-emption filed by predecessor of appellant/plaintiff claiming his preferential right being son of vendor, as his heir, co-sharer in joint khata, khewat holder in mauza, was remanded by High Court---Respondents controverted the suit on many legal/ factual objections including that suit was benami/collusive; that plaintiff was present at time of bargain/execution of sale deed---In second round of litigation suit was decreed by Trial Court but appeal was allowed by appellate Court--- Validity--- Appellate Court dismissed the suit on ground that plaintiff was estopped from filing suit, observing the fact that plaintiff did neither file any replication to controvert the specific assertion of respondents/ defendants that plaintiff was present at time of bargain/ execution of sale nor the defendant was cross-examined on such point; that relationship between vendor and appellant (being father and son) was cordial; that vendor being an aged man was dependent on appellant; that plaintiff failed to cross-examine crucial portions of statements of defendants' witnesses---Evidence of defendants remained uncrossed/unchallenged/un-rebutted---Conduct of appellant/pre-emptor suggested the ill-motive behind the suit---Mala fide on part of pre-emptor was apparent---Suit of appellant/ pre-emptor was liable to be dismissed on ground of limitation and barred by law to the extent of one defendant---Appellate Court had rightly accepted respondent's appeal and dismissed the suit---Appeal was dismissed accordingly.

Mian Shah Nawaz Khan v. Allah Ditta and others 1982 CLC 1348 rel.

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

----Art. 113--- Statement in Cross-examination---Statement of witness which remained uncrossed/unchallenged and was not impeached by questioning in cross-examination, then same would be deemed to have been admitted.

Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300 rel.

----O. XLI, R. 33---Appellant's suit for possession through pre-emption was dismissed by Trial Court and appeal was allowed by appellate Court---On respondent's appeal, High Court remanded the case for impleading one defendant and issue was framed in that regard---Held, that although name of said defendant was not mentioned in exhibit/sale deed, but after writing names of two vendees they were shown to be 03 sons with 03 respective shares---Name of said defendant was clearly reflected in registered sale deed and mutation was sanctioned on basis of such sale deed---Said documents were not available in first round of litigation---Question whether respondents without filing any appeal/cross objection were entitled to challenge the findings of two Courts below challenging said issue---In regular second appeal, the same rules were applicable as provided in O. XLI of Civil Procedure Code, 1908---Court had manifest power to set right any illegality committed by courts below while deciding specific issue by exercising corrective powers, hence, without even filing any appeal / cross objection, respondents were entitled to attack the findings of Courts below on said issue.

Abdul Haque and others v. Shaukat Ali and 2 others 2003 SCMR 74; Suba and others v. Abdul Aziz and others 2008 SCMR 332; Abdul Sattar and another v. Muhammad Iqbal PLD 2009 Lah. 407; Ghulam Hussain and another v. Faiz Muhammad and 7 others PLD 1991 SC 218; Central Government of Pakistan and others v. Suleman Khan and others PLD 1992 SC 418 and Province of Punjab through Collector, Rajanpur District and 2 others v. Muhammad Akram and others 1998 SCMR 2306 rel.

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

----S. 22---Civil Procedure Code (V of 1908), O.I, R.10(5)---Pre-emption---Non-impleading one of the vendees/necessary party---Bona fide mistake---Scope---Omission on part of the plaintiff to implead one of the vendees, defendant was impleaded after remand (i.e. in second round of litigation) through amended plaint, as defendant within prescribed period of limitation, did not protect him to give benefit of bona fide mistake---Appellant's suit to the extent of such defendant/vendee was hit by the O.I., R.10(5) of Civil Procedure Code, 1908 read with S.22 of Limitation Act, 1908.

Hayat and others v. Amir PLD 1982 SC 167 rel.

(e) Punjab Pre-emption Act (IX of 1991)---

----S. 5---Partial pre-emption---Exception to general rule---Pre-emptor must seek pre-emption of whole of the subject matter of the sale and pay the entire price paid by the vendees-Partial pre-emption, however, may be allowed in the cases: (i) when pre-emptor himself claims title to a part of the lands sold to a share out of those lands; (ii) when pre-emptor assails the vendor's title to a part of lands sold or the extent of his title thereto and (iii) when pre-emptor sets up the title of third persons to a part/share to the lands sold.

Abdul Rehman and another v. Faiz Bakhsh and others 1989 CLC 2338 and Jawala Das and others v. Gopal Lal (Pre-emptor) and Des Raj and others AIR 1925 Lah. 343 rel.

Anwar Mubeen Ansari for Appellants.

Malik Javed Akhtar Wains for Respondents.

YLR 2022 LAHORE HIGH COURT LAHORE 669 #

2022 Y L R 669

[Lahore]

Before Sadaqat Ali Khan and Shehram Sarwar Ch., JJ

ASIF SHAHZAD---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No. 127161-J of 2017 and Murder Reference No. 3 of 2018, heard on 10th November, 2021.

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

----Ss. 302, 325, 449 & 460---Qatl-i-amd, attempt to commit suicide, house-trespass in order to commit offence punishable with death, person jointly concerned in lurking house-trespass or house-breaking by night---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence--- Conflictions---Accused was charged for committing murder of the daughter of complainant and also trying to commit suicide by firing---Motive behind the occurrence was refusal of rishta---Ocular account in the case consisted of complainant and her daughter-in-law---Presence of both the said witnesses on the spot at the time of incident was doubtful in nature because they did not receive even a scratch during the incident---Said witnesses allegedly had seen the incident from a close distance but it was not understandable that in the presence of both the said witnesses, who were closely related to deceased, how such tragedy with the deceased could happen without any intervention on their part to rescue them---Ocular account was in direct conflict with the medical evidence because in the FIR it was the case of complainant that accused made a fire with pistol which landed on back of deceased but Medical Officer, who conducted autopsy of the dead-body of deceased and prepared post-mortem examination report, noted two entry and two exit wounds on the person of deceased---Circumstances established that the prosecution could not prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 325, 449 & 460---Qatl-i-amd, attempt to commit suicide, house-trespass in order to commit offence punishable with death, person jointly concerned in lurking house-trespass or house-breaking by night---Appreciation of evidence---No justification for the presence of witnesses at the spot---Chance witnesses---Scope---Accused was charged for committing murder of the daughter of complainant and also trying to commit suicide by firing---Record showed that deceased was married and she had strained relations with her husband---In the FIR as well as before the Trial Court it was the case of complainant that she along with other witnesses went to the house of her daughter/deceased in order to see her where the incident took place but the Investigating Officer had stated in his cross-examination that the house where the occurrence took place was owned by some other person and the same had been obtained on rent by accused---Both the witnesses of ocular account were chance witnesses because the incident allegedly took place in another area whereas both the witnesses of ocular account were resident of different area which fact had been endorsed by Investigating Officer---Before the Trial Court both the witnesses had not given any plausible reason for their presence on the spot at the time of incident---Evidence of said two eye-witnesses was shaky in nature and could not be relied upon for maintaining the conviction/ sentence of the accused---Circumstances established that the prosecution could not prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Naveed Asghar and 2 others v. The State PLD 2021 SC 600 rel.

----Ss. 302, 325, 449 & 460---Qatl-i-amd, attempt to commit suicide, house-trespass in order to commit offence punishable with death, person jointly concerned in lurking house-trespass or house-breaking by night---Appreciation of evidence---Motive was not proved---Scope---Accused was charged for committing murder of the daughter of complainant and also trying to commit suicide by firing---Motive behind the occurrence was refusal of rishta because accused demanded the Rishta of deceased which was refused by the complainant and due to the said reason the accused committed the incident---Record showed that deceased was already married , if it was so then there was no reason for the accused to demand the hand of deceased for him---No independent witness qua motive was joined by police in investigation or produced by prosecution before the Trial Court during trial---Prosecution had failed to substantiate motive against the accused---Circumstances established that the prosecution could not prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

Muhammad Ismail and others v. The State 2017 SCMR 898 rel.

(e) Criminal trial---

----Medical evidence---Scope---Medical evidence is only a supporting piece of evidence and relevant only if the primary evidence i.e. ocular account inspires confidence.

(f) Criminal trial---

----Duty of prosecution--- Scope---Prosecution has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weakness of the case of defence.

(g) 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 to the accused.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Sheraz Zaka, Muhammad Irfan Malik and Sheeba Qaiser for Appellant.

Muhammad Arshad Ali Farooqi, Deputy Prosecutor General for the State.

Nemo for the Complainant.

YLR 2022 LAHORE HIGH COURT LAHORE 675 #

2022 Y L R 675

[Lahore]

Before Abid Aziz Sheikh, J

AQEELA ABID---Petitioner

Versus

Ch. BASHIR AHMAD through Legal Heirs and 2 others---Respondents

Writ Petition No.213378 of 2018, heard on 22nd September, 2021.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss. 10 & 15---Ejectment petition---Landlord and tenant, relationship of---Relationship, denial on basis of agreement to sell with third person---Alleged purchaser filed application under O.I, R.10, C.P.C. which was dismissed---Trial Court decreed the petition---Appeal of the respondent was allowed---Validity---No document was available to show that tenant was directed either to handover possession of the house to alleged purchaser or that the tenancy was invoked---Merely on basis of agreement to sell, the respondents/tenants could not presume revocation of tenancy---Admittedly, the respondent was not in occupation of the premises in pursuance to said agreement to sell but by virtue of rent deed---No claim by respondent/ tenant that after agreement to sell alleged purchaser handed over the possession to him as of a tenant or otherwise---Alleged agreement to sell was not between the landlord and tenant but it was between petitioner (landlord) and son of the tenant, hence, S.10 of Punjab Rented Premises Act, 2009, would not apply---Neither alleged purchaser's suit for specific performance had been decreed nor property had been transferred in his name through any registered document---Constitutional petition was allowed and eviction order was restored.

Dr. Shahida Hasnain v. Mian Umar Ikramul Haq and another PLD 2016 Lah. 123; Haji Muhammad Saeed v. Additional District Judge 2012 MLD 108; Mst. Zarina Khan v. Mst. Farzana Shoaib 2017 SCMR 330 and Ayesha Moeen v. Appellate Rent Tribunal/Additional District Judge, Lahore and 4 others 2016 CLC 1832 rel.

(b) Punjab Rented Premises Act (VII of 2009)---

----S. 10---Other agreement---Landlord and tenant, relationship of---Effect---In order to apply S.10 of the Punjab Rented Premises Act, 2009, the agreement to sell must be between landlord and tenant if the person is in occupation of the premises by virtue of agreement to sell and not because he was a tenant, S.10 of the Act will have no bearing on the matter.

Mian Umar Ikramul Haque v. Dr. Shahida Hasnain and another 2016 SCMR 2186; Islamabad Chamber of Commerce and Industries, Islamabad PLD 1986 Lah. 393 and Mst. Gulshan v. Ameer Ali and others PLD 1997 Kar. 292 rel.

Jawad Jamil and Moeen Ahmad Siddiqui for Petitioner.

Riaz Hussain Chaudhry for Respondents.

YLR 2022 LAHORE HIGH COURT LAHORE 721 #

2022 Y L R 721

[Lahore (Multan Bench)]

Before Raja Shahid Mahmood Abbasi and Sadiq Mahmud Khurram, JJ

HAQ NAWAZ---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No. 520-J of 2018 and Murder Reference No. 86 of 2017, heard on 30th March, 2021.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Presence of the eye-witnesses at the spot was justifiable---Scope---Accused was charged for committing murder of the brother of the complainant by firing---Motive behind the occurrence was that deceased forbade the accused from his house and due to that grudge accused committed the murder of the deceased---Ocular account of the incident had been furnished by brother and paternal cousin of the deceased being eye-witnesses---Admittedly, the accused was married to the sister of the deceased since the last 8/9 years prior to the occurrence---Both the eye-witnesses explained their presence at the place of occurrence categorically---Said witnesses in a very natural and forthright manner narrated the incidence and gave each and every detail of the same---Occurrence took place inside the agricultural land belonging to brother of deceased and at about 02.30 p.m., the presence of deceased and eye-witnesses at that time, inside their own agricultural land, just in front of their houses, could not be doubted and was, but natural---Both the witnesses explained their arrival at the place of occurrence and also the reason for their presence there---Similarly, eye-witness also explained that his house was adjacent to the house of complainant and he along with the witnesses and the deceased were working at the place of occurrence before the arrival of the accused---Site plans of the place of occurrence revealed that the presence of the witnesses had been clearly marked in the same and it had been mentioned in the same that the occurrence took place in the land belonging to deceased---Perusal of the said site plan of the place of occurrence further revealed that the land cultivated by eye-witness had also been marked in the same, whereas the house of the complainant and the deceased had also been clearly identified---Such evidence proved that not only both the witnesses were present at the place of occurrence at the time of occurrence but they had also witnessed the occurrence which had taken place inside their own cultivated land---No friction between the accused and the witnesses existed prior to the occurrence, which could have made the eye-witnesses interested to get the accused, their own brother-in-law, involved in the occurrence falsely---Said witnesses were subjected to lengthy cross-examination but the defence had failed to make cracks in their deposition with regard to the accused and the veracity of their statements had been proved---Circumstances established that the prosecution had proved its case against the accused beyond the shadow of any doubt---Due to some mitigating circumstances, death sentence of the accused was altered to imprisonment for life---Appeal against conviction was dismissed with said modification in sentence.

Ghulam Ali and another v. The State 2002 SCMR 1205 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Identification of accused by witnesses---Scope---Accused was charged for committing murder of the brother of the complainant by firing---Admittedly, the accused was married to the sister of the accused since the last 8/9 years prior to the occurrence---Identity of the accused by the witnesses was a question not even worth consideration as the same was proved beyond any doubt---Circumstances established that the prosecution had proved its case against the accused beyond the shadow of any doubt, however, due to some mitigating circumstances, death sentence of the accused was altered to imprisonment for life---Appeal was dismissed with said modification in sentence.

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Recovery of blood-stained earth---Scope---Accused was charged for committing murder of the brother of the complainant by firing---Investigating Officer of the case also collected the blood-stained earth from the place of occurrence---Report of the Forensic Science Agency established that the said blood taken from the place of occurrence was of human origin--- Circumstances established that the prosecution had proved its case against the accused beyond the shadow of any doubt, however, due to some mitigating circumstances, death sentence of the accused was altered to imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Related witness---Statement of--- Reliance--- Scope--- Accused was charged for committing murder of the brother of the complainant by firing---Eye-witnesses being the real brother and the paternal cousin of the deceased respectively had no reason to falsely implicate the accused in the commission of the offence by substituting him and letting off the real culprits, more so when the accused was also related to the witnesses---No such material was available on record which would indicate substitution of the accused in the case with the real culprit---Circumstances established that the prosecution had proved its case against the accused beyond the shadow of any doubt, however, due to some mitigating circumstances, death sentence of the accused was altered to imprisonment for life---Appeal was dismissed with said modification in sentence.

(e) Criminal trial---

----Substitution of accused---Principle---Substitution was a phenomenon of a rare occurrence because even the interested witnesses would not normally allow real culprits for the murder of their relations let off by involving innocent persons.

Irshad Ahmad and others v. The State and others PLD 1996 SC 138 rel.

(f) Criminal trial---

----Witness---Related and interested witness--- Reliance--- Scope--- Mere relationship of the prosecution witnesses with the deceased and inter-se was not sufficient to discredit their testimony.

Ijaz Ahmad v. The State 2009 SCMR 99 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of motorcycle and slippers---Scope---Accused was charged for committing murder of the brother of the complainant by firing---Record showed that from the place of occurrence the motorcycle of the accused was recovered and taken into possession by the Investigating Officer of the case on the day of occurrence---Pair of slippers which the accused had left behind, as he was fleeing from the place of occurrence, was also recovered from the place of occurrence by the Investigating Officer of the case---Recovery of the said articles belonging to the accused from the place of occurrence further established the case of the prosecution---Circumstances established that the prosecution had proved its case against the accused beyond the shadow of any doubt, however, due to some mitigating circumstances, death sentence of the accused was altered to imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay of three hours and fifteen minutes in lodging the FIR---Scope---Accused was charged for committing murder of the brother of the complainant by firing---Occurrence, took place at 02.30 p.m., which was reported at 4.30 p.m., when the oral statement of complainant was recorded by the Investigating Officer of the case, on the day of occurrence, inside the Trauma Center of the Hospital---Formal FIR was registered at 5.45 p.m.---Distance between the place of occurrence and police station was nine kilometres and the complainant had suffered the traumatic and tragic loss of life of his brother---Both the witnesses explained during cross-examination that after the occurrence they immediately shifted the deceased to the hospital---Oral statement of complainant and the formal FIR were got lodged within a short duration---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 pondering or planning regarding the false implication of the accused---Details of the occurrence had been elaborately explained in the FIR and the oral statement of complainant---Promptitude in reporting the matter to the police also established that the eye-witnesses could not have developed a false narrative regarding the occurrence, in which the brother of the complainant had died in such a short time---Circumstances established that the prosecution had proved its case against the accused beyond the shadow of any doubt, however, due to some mitigating circumstances, death sentence of the accused was altered to imprisonment for life---Appeal was dismissed with said modification in sentence.

Muhammad Waris v. The State 2008 SCMR 784 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Medical evidence supported the ocular account---Scope---Accused was charged for committing murder of the brother of the complainant by firing---Medical evidence produced by the prosecution in the case also proved that the deceased had received the fatal injury with a firearm weapon on the vital part of the body and he succumbed to the said injury---Medical evidence fully supported the ocular account---Probable time between the death of deceased and the conducting of the post-mortem examination as noted by Medical Officer was about four to five hours, which estimation coincided with the time of occurrence as mentioned by the witnesses---Post-mortem examination of the dead body of deceased had been conducted quite promptly leaving no room for deliberations or fabrication of a story---All the necessary documents were also provided to Medical Officer prior to conduct post-mortem examination of the dead body of deceased---Promptitude in conducting the post mortem examination of the dead body of the deceased established that the matter was reported to the police immediately and spontaneously with regard to the accused---Circumstances established that the prosecution had proved its case against the accused beyond the shadow of any doubt, however, due to some mitigating circumstances, death sentence of the accused was altered to imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence from the accused---Reliance---Scope---Accused was charged for committing murder of the brother of the complainant by firing---Pistol was recovered from the accused, however, the said recovery could not be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recovery of the said pistol from the accused which was in clear violation of S.103, Cr.P.C---Which 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---Perusal of the report of Forensic Science Agency regarding the comparison of empty and the recovered pistol revealed that the empty recovered from the place of occurrence was deposited in the office of Forensic Science Agency on 05.05.2015, whereas the accused was arrested on 30.04.2015 by the Investigating Officer of the case---No reason for keeping the empty recovered from the place of occurrence at the police station till the arrest of the accused---Possibility of fabrication on part of the Investigating Officer of the case could not be ruled out in circumstances---Perusal of the report of Forensic Science Agency regarding the comparison of empty and the recovered pistol further revealed that the empty and the pistol were submitted at the office of Forensic Science Agency on the same day---Said report of Forensic Science Agency had no evidentiary value---Appeal was dismissed with modification in sentence.

Muhammad Ismail and others v. The State 2017 SCMR 898; Muhammad Amin v. The State and another 2019 SCMR 2057; Nasrullah alias Nasro v. The State 2017 SCMR 724 and Nasrullah alias Ali Sher v. The State 2008 SCMR 707 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Motive was not proved---Scope---Accused was charged for committing murder of the brother of the complainant by firing---Motive of the occurrence, as mentioned in the oral statement of complainant, was that there was a dispute between the accused and the deceased, as the deceased had stopped the accused from visiting their house due to strange relations between the accused and his wife, the sister of the deceased and complainant---No further details of the said motive were provided in the FIR---Complainant during cross-examination stated that the accused used to visit their house after an interval of 5/6 days, however their sister, who was married to the accused, was residing in the house of complainant and the deceased---Eye-witness also stated during cross-examination that prior to the occurrence no altercation or quarrel had taken place between the accused and the deceased---Even the wife of the accused with whom the accused was allegedly having strained relations did not appear either before the Investigating Officer of the case or before the Trial Court in support of the alleged motive---Name of the wife of the accused was not even mentioned during the course of the investigation and the trial---Nothing was on record as to when the wife of the accused had been living at the house of her brothers, the deceased and complainant---Prosecution witnesses failed to provide evidence enabling to determine the truthfulness of the motive alleged and the fact that the said motive was so compelling that it could have led the accused to have committed the qatl-i-amd of the deceased---Silence with regard to the minutiae of motive alleged---No independent witness was produced by the prosecution to prove the motive as alleged---Circumstances established that the prosecution had proved its case against the accused beyond the shadow of any doubt, however, due to some mitigating circumstances, death sentence of the accused was altered to imprisonment for life---Appeal was dismissed with said modification in sentence.

Muhammad Asif v. The State 2008 SCMR 1001 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances--- Scope---Accused was charged for committing murder of the brother of the complainant by firing---Record showed that there were some mitigating circumstances in favour of the accused---Firstly, the evidence of recovery of the pistol from the possession of the accused had been disbelieved and secondly, the prosecution had alleged a specific motive in the case but failed to prove the same---Question of quantum of the sentence required utmost attention and thoughtfulness on the parts of the courts---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 awarded to the accused was, thus, quite harsh---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---Non-proof of motive might be considered a mitigating circumstance in favour of the accused, hence, the conviction of the accused as awarded by the Trial Court was maintained but the sentence of death awarded to him was altered to imprisonment for life---Appeal was dismissed with said modification in sentence.

Mir Muhammad alias Miro v. The State 2009 SCMR 1188; Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1660; 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.

Muhammad Usman Sharif Khosa, for Appellant.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

YLR 2022 LAHORE HIGH COURT LAHORE 773 #

2022 Y L R 773

[Lahore]

Before Muhammad Shah Gul, J

AHMAD LATIF, CHIEF OPERATING OFFICER and 2 others---Petitioners

Versus

The CANE COMMISSIONER and 6 others---Respondents

Writ Petition No.48553 of 2021, heard on 6th August, 2021.

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

----O.XXXIX, Rr.1 & 2---Constitution of Pakistan, Art. 199--- Constitutional petition---Stay order--- Effect--- Where public authority has yet to make a final decision, grant of stay prohibits it from taking further steps to make a decision---Stay and injunction can have practical effect of preventing some action before legality of that action has been conclusively determined---Stay achieves such result by temporarily suspending source of an authority to act and not by directing actors' conduct---Stay order simply suspends variation or modification of status quo---Stay order issued against a Court order or decision of an executive authority tentatively reflects upon the availability or vesting of jurisdiction i.e. either the jurisdiction is not possessed by the authority or Court which passed the order or the jurisdiction appears to have been illegally and incorrectly assumed and exercised---Very foundation of order assailed in such cases appears to be wobbly and stay order would have effect of stripping relevant authority of jurisdiction/power to proceed any further or giving effect to order assailed (e.g. stay of execution) instantaneously the moment it is passed without there being any consideration of communication---When a stay order divesting a lower authority of jurisdiction to deal with a matter is issued, it makes the order assailed redundant till final adjudication and no valid action can commence on the basis of or in consequence of the stayed order----Act done which have the effect of nullifying a stay order are a nullity because the very authority/jurisdiction to do any such thing is suspended and does not exist operationally.

Halsbury's Laws of England, 4th Edition, Volume-37; Black's Law Dictionary 6th Edition 1990 at Page-1413; Ardeshir Cowsjee v. Province of Sindh 2002 CLC 284; Karam Ali and others v. Raja and others PLD 1949 Lah. 100; Messrs Shoaib Bilal Corporation v. The Commissioner of Income Tax and another 1993 PTD 332; M.A. Aziz Khan v. Jamshed Ali Khan Mirza and 3 others 1986 CLC 248; Pervaiz Bashir Warraich and another v. Election Tribunal/District and Sessions Judge, Mandi Baha-ud-Din and 4 others 2006 CLC 1407; Ms. Bushra Khanum v. Habib Bank Ltd. and others 2003 CLD 528; Messrs Hakimuddin Harmusji and Sons v. Messrs Ghafoor Textile Mills PLD 1978 Kar. 152; Syed Nazirn Ahmad v. Syed Muhammad Saeed and another PLD 1955 Lah. 34; U.S. Supreme Court in NKEN v. Holder, Attorney General 556 U.S. (2009); Abdul Rashid Khan and 2 others v. Mst. Nasim Akhtar 1974 SCMR 509; Haji Abdul Jalil v. Javid Ahmad 1983 SCMR 869; Din Muhammad and 2 others v. Abdul Rehman Khan 1992 SCMR 127; Muhammad Nawaz v. The State and 2 others 2015 PCr.LJ 1514; Messrs National Electric Company (Pvt.) Ltd., Gujranwala v. The Commissioner of Income Tax, Gujranwala Zone, Gujranwala 1996 PTD 901; Muhammad Anwar v. Muhammad Akbar and others PLD 2000 SC 52; Persumal and others v. Government of Pakistan and others PLD 1960 (W.P.) Karachi 690; Nand Kishore v. Shadi Ram AIR 1926 All. 457; Hukam Chand Boid v. Kamalanand Singh ILR 33 Cal. 92 and Aamir Shehzad v. The State and another PLD 2005 Lah. 568 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Quashing of FIR---Registration of FIR during stay order---Effect---Criminal case was registered against petitioner on complaint of Cane Commissioner---Dispute between parties was already subject matter of another Constitutional petition in which stay order had been granted in favour of petitioner---Contention of petitioner was that the FIR was registered in presence of stay order granted by High Court in other petition---Validity---First Information Report registered was for the present a nullity---Basis on which stay order was passed was yet to be judicially determined finally, instead of quashing FIR and declaring it by way of issuance of certiorari, to be of no legal---High Court suspended operation of FIR and its ensuing consequences till the time matter raised in connected petition was finally determined---Constitutional petition was allowed accordingly.

Muhammad Ayub Khuhro v. Pakistan, through the Ministry of Interior Government of Pakistan and 2 others PLD 1960 SC 237; Moulana Atta-ur-Rehman v. Al-Haj Sardar Umar Farooq and others PLD 2008 SC 663; Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104; Aamir Shehzad v. The State and another PLD 2005 Lah. 568; Province of Punjab v. Zafar Ali Shah 1994 SCMR 482; Messrs Pak Furnishing Stores's case PLD 1985 Kar. 201 and Halsbury's Laws of England, 4th Edition, Volume-37 ref.

Province of Punjab v. Zafar Ali Shah 1994 SCMR 482 distinguished.

Hafeez Saeed Akhtar and Muhammad Ali Yousaf for Petitioners.

A. W. Chaddha and Barrister Syed Ali Nouman, Assistant Advocate General for Respondents.

YLR 2022 LAHORE HIGH COURT LAHORE 805 #

2022 Y L R 805

[Lahore]

Before Muhammad Amjad Rafiq, J

MUHAMMAD HASSAN alias AAMIR---Petitioner

Versus

The STATE and others---Respondents

Criminal Appeal No. 383-J, Criminal Revision No. 630 and Criminal P.S.L.A. No. 204 of 2016, heard on 24th June, 2021.

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

----Ss. 302(b), 324, 109, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)--- Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Withholding of material evidence---Scope---Accused were charged for committing murder of the father-in-law, mother-in-law and wife of the complainant by firing---Motive behind the occurrence was previous bloodshed---Record showed that during the occurrence, a passerby who was also injured but could not appear as witness---Defence had seriously objected about her non-appearance so as to push the court to draw an adverse inference---Investigating Officer stated during cross-examination that he never tried to join into investigation the said injured---Record showed that said injured being relative of both the parties did not appear as witness---Defence was at liberty to call for such witness as defence witness or court witness to shatter the prosecution case---Prosecution was not obliged to put her in the dock because it was quality not the quantity that mattered---Circumstances established that the prosecution had successfully proved the case against the present accused on the touchstone of standard required in a criminal case---Appeal against conviction being devoid of merit was dismissed, in circumstances.

Khalid Mehmood and another v. The State and others 2021 SCMR 810 ref.

Nadeem alias Nanha alias Billa Sher v. State 2010 SCMR 949 rel.

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

----Ss. 302(b), 324, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Motive was proved---Scope---Accused were charged for committing murder of the father-in-law, mother-in-law and wife of the complainant by firing---Motive in the correct sense, was the emotion supposed to have led to the act---External fact which was sometimes styled the motive, was merely the possible exciting cause of that 'motive' and not identical with the motive itself---Accused had stated in his statement under S.342, Cr.P.C., that his father was murdered and he had enmity with the complainant party---Such statement on his part was indicative of his intention and action for committing murder of male deceased on that score---Father of accused was murdered in year 1996---First Information Report under Ss. 302, 109 & 34, P.P.C. was lodged against the deceased but said deceased stood acquitted from the Trial Court---Year when father of the accused was murdered, he was about six years of age---As per evidence, accused was brought up by his maternal relations, therefore, it was natural consequence that when he grew up, such loss and deprivation ignited him for retaliation to take revenge of murder of his father---Accused was in the twenty one years of age when he committed that murder as reflected from birth certificate, hence, motive against the present accused was proved in the case---Circumstances established that the prosecution had successfully proved the case against the present accused on the touchstone of standard required in a criminal case---Appeal against conviction being devoid of merit was dismissed, in circumstances.

Muhammad Arshad v. The State 2015 SCMR 258 rel.

----Ss. 302(b), 324, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence--- Ocular account---Scope---Accused were charged for committing murder of the father-in-law, mother-in-law and wife of the complainant by firing---In the present case, group of witnesses led by prosecution for adducing ocular account comprised of two witnesses--- Said witnesses reasonably explained their presence at the spot---Occurrence took place near the house of complainant---Witnesses were residents of nearby vicinity---Defence while putting question to said witnesses ensured his presence at the spot particularly when a witness admitted as correct that passerby was actual injured person who was present at the place of occurrence---Said two witnesses had no direct enmity with the accused, though with other accused somehow or the other a smell of enmity prevailed---Prosecution had successfully proved the presence of such witnesses at the spot---Testimony of said witnesses was consistent and coherent and they had no axe to grind against the accused---Matter was promptly reported to the police which ruled out consultation and deliberation---Spontaneity of events were perfectly explained through ocular account with respect to nomination, role, weapons of offence and locale of injuries to three deceased persons---Stance of such witnesses remained intact throughout the process and there were no dishonest improvements in their court statements---Even dead bodies were dispatched to mortuary within an hour of reporting the matter to police---No question of mistaken identity was there as the parties knew each other and it was day light occurrence---Defence had not controverted the place of occurrence which was committed in front of complainant's house---Circumstances established that the prosecution had successfully proved the case against the present accused on the touchstone of standard required in a criminal case---Appeal against conviction being devoid of merit was dismissed, in circumstances.

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

Muhammad Asif v. Mehboob Alam 2020 SCMR 837; Ghulam Rasool v. The State 2010 SCMR 1579 and Haq Nawaz v. State 2018 SCMR 21 rel.

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

----Ss. 302(b), 324, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of weapon of offence and crime empties---Reliance---Scope---Accused were charged for committing murder of the father-in-law, mother-in-law and wife of the complainant by firing---Prosecution revealed that firing was made by the accused persons and investigation showed that from the place of occurrence, 35 crime empties of pistol 9 mm were recovered which were sent to Forensic Science Laboratory through Police Official/court witness which parcel was deposited the next day---Pistol was recovered after about two months on the lead of accused from his house---Prosecution produced a witness who proved the time, place and nature of recovery---Defence despite cross-examination could not bring on record anything favourable to the accused---Report of Forensic Science Laboratory showed that test empties sent for testing were not fired from the weapon recovered---Rather from the bare examination of cartridges they were found different from one those fired from 9 mm pistol---Such fact showed that empties were totally replaced in the process, otherwise, first report could not have been declared as positive---Second examination of pistol and empties took place after four years of recovery---Chance of damage could not also be ruled out---Such circumstance was of no help for the defence and it could not be considered that pistol recovered on the disclosure/lead of accused was not matched with the crime empties collected from the spot---Circumstances established that the prosecution had successfully proved the case against the present accused on the touchstone of standard required in a criminal case---Appeal against conviction being devoid of merit was dismissed.

Abid Saqi and Farrukh Gulzar Awan for Appellant.

Ms. Noshi Malik, Deputy Prosecutor General for the State.

Azam Nazir Tarar and Mudassar Naveed Chatha for the Complainant.

YLR 2022 LAHORE HIGH COURT LAHORE 833 #

2022 Y L R 833

[Lahore]

Before Safdar Saleem Shahid, J

MOAZZAM ALI and 2 others---Petitioners

Versus

LIAQAT ALI and 7 others---Respondents

Civil Revision No. 333 of 2013, decided on 9th June, 2021.

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

----O. XLI, R. 27---Constitution of Pakistan, Art. 10A--- Appellate jurisdiction---Suit pending before District Court--- Revenue records--- Official witness, production of--- Additional evidence, application for--- Refusal, grounds of---Held, that the spirit of O. XLI, R. 27, C.P.C. was to provide an opportunity of fair trial to the parties---Application for additional evidence could only be refused if it had been filed to introduce some new witnesses and to fill in the lacunas, but if list of witnesses was submitted within time in the Court and the diet money was also deposited in the Court, then presumption could not be drawn against the applicant irrespective of the fact that at what stage they filed the application for additional evidence---Suit was solely regarding the revenue record, therefore, the revenue officers/ officials were necessary witnesses to enable the Court to reach at a right conclusion---High Court allowed revision petition and directed the appellate court to summon the witness, record evidence and proceed with the appeal in accordance with law.

Muhammad Dawood v. Superintending Engineer, Operation Circles, WAPDA, Quetta and 2 others 1990 SCMR 1252; Mst. Bashir Bibi v. Aminuddin and 9 others 1972 SCMR 534; Hakim Habibul Haq v. Aziz Gul and others 2013 SCMR 200; Abdul Ghani and another v. Mst. Nur Jahan and others 1989 MLD 3055; Muhammad Younas v. Pirzada MA. Qureshi and others 1993 MLD 336; Muhammad Nazar Qureshi Hashmi v. Shaukat Ali and 3 others PLD 1994 Lah. 374; M.S. Rawalpindi General Hospital v. Raja Muhammad Fareedon and 3 others 2005 MLD 1057; Saleem-ud-Din and others v. Government of the Punjab through Secretary Education and others 2009 MLD 635; Haji Muhammad Riaz-ul-Hassan and 9 others v. WAPDA through Chairman, WAPDA, Lahore and 4 others 2011 CLC 1916; Shahida Parveen and others v. Rizwana Shaheen and others 2012 CLC 548 and Asifa Ayaz Toosy v. Additional District Judge and others 2019 CLC 362 rel.

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

----S. 105 & O. XLI, R. 27---Appeal from orders---Continuation of suit in appeal-Accepting application under O. XLI, R. 27, C.P.C., during appeal would not mean to re-open the case as the appeal was continuation of the suit.

Nawab-ur-Rehman Mian and Ms. Nayab Karim for Petitioners.

Bashir Ahmad Mirza for Respondents.

YLR 2022 LAHORE HIGH COURT LAHORE 853 #

2022 Y L R 853

[Lahore (Rawalpindi Bench)]

Before Sohail Nasir, J

GHULAM RASOOL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 701 of 2020, heard on 24th June, 2021.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Unnatural conduct of witnesses---Scope---Accused was charged for committing murder of the daughter of the complainant---Motive alleged was a family dispute between accused and deceased---Conduct of eye-witnesses remained unnatural throughout on various reasons: Firstly, eye-witnesses along with another witness were present in the house of accused and all the three were in a position to stop him for assaulting deceased, however, they simply tried to sensitize the accused, with no positive result; secondly, occurrence took place at 07:30 a.m. but none of them ever bothered to inform the police till the arrival of complainant who reached there at 11:00/11:30 a.m.---Neither complainant nor they considered it necessary to call the police because Sub-Inspector in his statement specifically said that he arrived at crime scene on receiving information through Moharrar and none else---Conduct of real mother and real brother of deceased also remained questionable as they too did not feel appropriate to inform the police for the reason best known to them---Circumstances established that the prosecution had failed to prove its case beyond shadow of 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---Chance witnesses---Effect---Accused was charged for committing murder of the daughter of the complainant---House of one eye-witness was at a distance of about half kilometre from crime scene and of other eye-witness at about 250 meters from there---Although one eye-witness said that he was standing in front of house of his sister that was opposite to crime scene, but he could not furnish any reason that why he came there on that day at the given time---Same infirmity was there in the statement of other witness who was also mum about the cause of his presence in front of the venue of crime---All three witnesses arrived at crime scene at a time when the occurrence had almost started---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

State through Advocate General Khyber Pakhtunkhwa v. Hassan Jalil and others 2019 SCMR 1154 and Muhammad Imran v. The State 2020 SCMR 857 rel.

----Vol. III, Ch. XXV, R.25.2(3)---Duty of Investigating Officer---Duty of Investigating Officer is to discover the truth irrespective of the fact that what the parties, rival to each other, have the claims---Once evidence is collected, it is to be produced before the court who in due course after judicial scrutiny of entire material has to arrive at a just decision of the case.

(d) Criminal trial---

----Medical evidence---Scope---Medical evidence was at the most a confirmatory proof, which did not identify the culprit---Medical evidence simply indicated nature of injuries, kind of weapon used, duration between injuries and death as well as between death and post-mortem.

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

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Principles---Once ocular account is disbelieved, medical evidence shall be of no consequence for prosecution.

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

----S. 302(b)---Qatl-i-amd---Benefit of doubt---Recovery of weapon of offence---Scope---Accused was charged for committing murder of the daughter of the complainant---Record showed that on spot inspection Investigating Officer had taken into possession an iron rod---During investigation, according to prosecution, accused led to the place of occurrence and pointed that he had thrown the iron rod there---As that was not a disclosure of any distinct fact because iron rod was already recovered from there, hence, that portion of evidence would also play no role in favour of prosecution---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Naveed Asghar and 2 others v. The State PLD 2021 SC 600 rel

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

----S. 302(b)---Qatl-i-amd---Benefit of doubt---Motive not proved---Scope---Accused was charged for committing murder of the daughter of the complainant---Motive alleged was family dispute between accused and deceased---Accused and his wife/deceased were residing together for the last more than ten years having three children and there was nothing in evidence that earlier to the occurrence there was any kind of dispute between them---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

(h) Criminal trial---

----Duty of prosecution--- Scope---Prosecution in all circumstances is under strict obligation to prove its case independently but not at the strength of weakness of defence.

Nasrullah alias Nasro v. The State 2017 SCMR 724; Arshad Khan v. The State 2017 SCMR 564; Nazeer Ahmed v. The State 2016 SCMR 1628 and Asad Khan v. The State PLD 2017 SC 681 rel.

Mehmood Azam Baloch for Appellant.

Complainant in person.

Ms. Maimoona Ehsan-ul-Haq, DDPP, for the State.

Record by Afzal SI.

YLR 2022 LAHORE HIGH COURT LAHORE 872 #

2022 Y L R 872

[Lahore]

Before Shams Mehmood Mirza, J

MANZOOR AHMAD and 13 others---Petitioners

Versus

The GOVERNMENT OF PUNJAB and 256 others---Respondents

Writ Petition No. 20430 of 2015, heard on 8th March, 2021.

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

----Ss. 175, 39(2)(b) & 184(3)(a)---Common welfare of the inhabitants of the village---Shamlat Deh reserved for Charagah--- Scope--- Construction of Government School on the said land (Shamlat Deh)---Petitioners (fourteen in number) assailed before the concerned Assistant Commissioner the mutation incorporated for the purpose of construction of the school by the Authority on the subject land (Shamlat Deh)---Assistant Commissioner dismissed the appeal filed by the petitioners, which order was maintained by the Additional Commissioner as well as Member Board of Revenue---Respondents (inhabitants of the village), who had also invoked constitutional jurisdiction of the High Court separately, contended that the petitioners themselves were illegal occupants on the land for Charagah---Question was whether or not the disputed land transferred through mutation-in-question was Shamalat Deh or whether the same was reserved for Charagah through the Wajib-ul-Arz---Validity---Record revealed that majority of the inhabitants of the area appended their signatures and thumb impression at the time of the mutation-in-question---Respondents had not only showed their preference for construction of School on the land-in-question but also had stated that the petitioners were in illegal occupation of land for Charagah---Petitioners and only one inhabitant out of the entire body (640) of land owners filed the appeal against the sanctioning of the mutation-in-question---All the forums below (Revenue Courts) also concluded that the petitioners were illegal encroachers on the land designated as Charagah---Said forums also arrived at the conclusion that land-in-question formed part of Charagah which was meant for the common welfare of the inhabitants of the village and as per S. 175 of the Punjab Land Revenue Act, 1967 ('the Act 1967'), the same could not be occupied by any particular person---Revenue record (Wajib-ul-Arz relied upon by the respondents and Register Haqdaran Zamin) had also confirmed the land-in-question as Charagah---Said Wajib-ul-Arz reflected the custom of the area regarding the land-in-question being used as Charagah---Petitioners did not challenge the entries of the Wajib-ul-Arz before any forum below ---Even the grounds of present constitutional petition did not assail the custom mentioned in the Wajib-ul-Arz regarding the status of Charagah---Wajib-ul-Arz in question carved out an area of 851 Kanal 15 Marla out of the Shamlat Deh for Charagah, which was a common land---Petitioners having never disputed the entries of the Wajib-ul-Arz before any forum, they had no right to occupy the same---Petitioners had failed to make out any case for interference of the High Court in the impugned order passed by the Member Board of Revenue dismissing their revision against the concurrent orders passed by the concerned Assistant Commissioner and Additional Commissioner---High Court directed that as the petitioners were encroachers on land for Charagah, therefore, Revenue Authorities shall take necessary steps for retrieving the said land of Charagah from them---Constitutional petition was dismissed, in circumstances .

(b) Punjab Land Revenue Act (XVII of 1967)---

----Ss.175, 39(2)(b) & 184(3)(a)---Punjab Settlement Manual, Para. 295 & Appendix VIII-E ---Wajib-ul-Arz---Scope and applicability--- Wajib-ul-Arzor "village administration-paper" was a statement of custom respecting rights and liabilities in an estate and the same was given statutory recognition by clause (b) of subsection (31) of the Punjab Land Revenue Act, 1887 ('the Act 1887') thus making part of Record-of-Rights as a statement of custom respecting rights and liabilities in the estate---Official instructions contained in paragraph 295 of the Punjab Settlement Manual described Wajib-ul-Arz as "it (Wajib-ul-Arz) should be a record of existing custom regarding rights and liabilities in the estates which should not be used for the creation of new rights or liabilities, or for what may be called village legislation"---Appendix VIII-E of the Punjab Settlement Manual contained the rules on preparation of Wajib-ul-Arz---Although Punjab Land Revenue Act, 1887, stood repealed by virtue of S.184(1)(2) read with Part-II of the Schedule of the Punjab Land Revenue Act, 1967, however, S.184(3)(a) of the Act, 1967 saved the transactions (including record-of-rights and other record) framed/recorded thereunder---Section 39(2)(b) of the Punjab Land Revenue Act, 1967 retained Wajib-ul-Arz as part of the record-of-rights as "a statement of customs respecting rights and liabilities in the estate"---Wajib-ul-Arz, therefore, formed part of record-of-rights by force of S.184(3)(a) read with S.39(2)(b) of the Punjab Land Revenue Act, 1967.

----Ss. 52 & 39(2)(b)---Punjab Settlement Manual, Para. 295 & Appendix VIII-E---Wajib-ul-Arz--- Entries--- Custom or usage---Presumption of correctness---Scope---Entries in a Wajib-ul-Arz in regard to questions of custom were presumptive evidence of existence of the rules of custom or village usages embodied therein to which a presumption of correctness was attached---Onus was on the party who contended to the contrary in regard to the custom or village usage mentioned in the Wajib-ul-Arz to establish his case.

(d) Punjab Land Revenue Act (XVII of 1967)---

----S. 39--- Wajib-ul-Arz, status of---Entries in revenue record---Scope---Legal status of Wajib-ul-Arz prepared under S.39 of the Punjab Land Revenue Act, 1967 was that of custom and it provided a legal basis for determination of Shamlat Deh and it was not necessary that it should be incorporated in each successive jamanbandi--- Rights of landowners pertaining to distribution of Shamlat Deh were determined on the basis of Wajib-ul-Arz which took precedence over entries in successive jamanbandis including jamanbandi preceding the consolidation.

Mian Ali Nawaz and others v. Khalid Hussain and others 2009 MLD 797 ref.

Sameer Ijaz Ahmad and M. Barjees Iftikhar vice Peer Masood Chishti for Petitioner.

Suqrat Mir Basit for Respondents.

Syed Najaf Hussain Shah for Respondent No.2/Danish School.

Shahid Raffique Meyo for Respondents.

Saad Bin Ghazi, Assistant Advocate General for Respondents.

Rana Mehbob Ali, Law Officer O/O D.C., Mandi Bahuddin.

YLR 2022 LAHORE HIGH COURT LAHORE 894 #

2022 Y L R 894

[Lahore]

Before Safdar Saleem Shahid, J

MUHAMMAD BOOTA---Petitioner

Versus

KHALID ZIA ULLAH---Respondent

Civil Revision No. 1918 of 2013, heard on 16th June, 2021.

Punjab Pre-emption Act (IX of 1991)---

----S. 13---Suit for pre-emption---Death of original pre-emptor during pendency of suit---Scope---Defendant assailed judgment and decree passed by Appellate Court whereby the suit of plaintiff for possession through pre-emption was decreed and the judgment and decree passed by Trial Court was set aside---Validity---Plaintiff did not have superior right of pre-emption to file the suit---Even otherwise on account of death of original pre-emptor the plaintiff had stepped into his shoes and had become pre-emptor---Such was important for pre-emptor to have superior right on three stages of pre-emption, at the time of sale, at the time of filing of the suit and at the time of decree, certainly that aspect went against the plaintiff---Even on the point of inheritance, if his status as pre-emptor was admitted as correct he did not qualify to make statement to establish Talb-i-Muwathibat---Plaintiff's evidence regarding Talb-i-Muwathibat was hearsay evidence which was inadmissible---Neither the plaintiff was present at the time of making Talb-i-Muwathibat nor was present at the time of notice of Talb-i-Ishhad, his evidence was not in accordance with law, as required under S. 13 of Punjab Pre-emption Act, 1991---Other witnesses of Talb-i-Muwathibat were also not consistent and they were not sure about time, date and place---Postman although had died but the person who had appeared to make statement on his behalf was not legally entitled to make the same---Suit of the plaintiff was dismissed.

Muhammad Ishaq v. Muhammad Sadiq 2007 SCMR 1478; Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287; Baldeo Misir v. Ramlangan Shukul AIR 9124 Allahabad 82; Bilal Ahmad and another v. Abdul Hameed 2020 SCMR 445; Muzaffar Hussain v. Mst. Bivi and 7 others PLD 2012 Lah. 12; Mir Muhammad Khan and 2 others v. Haider and others PLD 2020 SC 233; Muhammad Anwar v. Safeer Ahmed and 5 others 2017 SCMR 404; Mst. Kaneez Begum v. Muhammad Asghar and others 2014 MLD 1179; Mst. Rooh Afza v. Aurangzeb and others 2015 SCMR 92; Mian Pir Muhammad and another v. Faqir Muhamamd through L.Rs and others PLD 2007 SC 302; Faqir Muhammad and 8 others v. Abdul Momin and 2 others PLD 2002 SC 594; Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others 2014 SCMR 914; Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; Basharat Ali Khan v. Muhammad Akbar 2017 SCMR 309 and Allah Ditta through L.Rs and others v. Muhammad Anar 2013 SCMR 866 ref.

Ghulam Hussain v. Muhammad Rasheed and 6 others 2018 MLD 117 and Sultan v. Noor Asghar 2020 SCMR 682 rel.

Mehmood Ahmad Bhatti for Petitioner.

Mian Javed Iqbal Arian for Respondent.

YLR 2022 LAHORE HIGH COURT LAHORE 901 #

2022 Y L R 901

[Lahore (Rawalpindi Bench)]

Before Ch. Abdul Aziz and Muhammad Waheed Khan, JJ

Raja FAHAD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 25 of 2018 and Murder Reference No. 79 of 2019, heard on 20th May, 2021.

(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 the brother of complainant by inflicting churri blows---Ocular account of the incident had been furnished by brother and cousin of the deceased---Statements of said two witnesses were found to be in unison on material aspects of the case regarding mode, manner of occurrence and the role allegedly played by the accused---Both the witnesses were cross-examined by the defence but no serious effort was made to challenge their availability at the crime scene and rebut their evidence---Defence had only put bald suggestions to them without putting any solid material to dislodge their claim qua the culpability of the accused---In the present case, on perusal of FIR, statement of eye-witnesses and the other facts and circumstances available on record showed that there was no background of ill-will or bitterness between the accused and the deceased---Incident in issue had erupted all of a sudden without pre-meditation and the accused allegedly caused fatal knife (Churri) injuries to the deceased due to a sudden quarrel between them---At the same time nothing was available on record, which could suggest that the accused had taken undue advantage or acted in cruel or unusual manner---Circumstances established that the prosecution had proved its case against the accused beyond shadow of reasonable doubt---Facts and circumstances of the case suggested that accused was liable to be convicted and punished under S.302(c), P.P.C., instead of S.302(b), P.P.C.---Resultantly, death sentence was converted into imprisonment for fourteen years, in circumstances---Appeal against conviction was dismissed with said modification in sentence.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 164--- Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Collection of evidence through modern device---Scope---Accused was charged for committing murder of the brother of complainant by inflicting churri blows---In the present case, most important evidence, which had paramount importance, was available in the case in shape of Close Circuit Camera footage of the occurrence, which was secured through USB on the order of the Trial Court during the course of trial---So evidence produced by the prosecution in shape of ocular account and the scientific evidence consisting upon CCTV footage are reliable, confidence inspiring and trustworthy---Circumstances established that the prosecution had proved its case against the accused beyond shadow of reasonable doubt---Facts and circumstances of the case suggested that accused was liable to be convicted and punished under S.302(c), P.P.C., instead of S.302(b), P.P.C.---Resultantly, death sentence was converted into imprisonment for fourteen years, in circumstances---Appeal against conviction was dismissed with said modification in sentence.

Ali Haider alias Papu v. Jameel Hussain and others PLD 2021 SC 362 and Muhammad Sohail alias Samma and others's case 2019 PCr.LJ 1652 rel.

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Accused was charged for committing murder of the brother of complainant by inflicting churri blows---Recovery of weapon of offence on the pointation of accused--- Scope--- Blood-stained knife (Churri) was allegedly recovered during the course of investigation, in pursuance of information provided by the accused himself to the police and he had himself led to the police party and got the blood stained knife (Churri) recovered underneath water tank from the rooftop of the said hotel---Weapon was secured through memo and the same was sent for forensic analysis---Report by the Forensic Science Agency not only declared that the weapons (Churri) was stained with human blood but it also contained the finger prints of accused---Circumstances established that the prosecution had proved its case against the accused beyond shadow of reasonable doubt---Facts and circumstances of the case suggested that accused was liable to be convicted and punished under S.302(c), P.P.C. instead of S.302(b), P.P.C.---Resultantly, death sentence was converted into imprisonment for fourteen years---Appeal against conviction was dismissed with said modification in sentence.

Imran Khan Abbasi for Appellant.

Nemo for Complainant.

Naveed Ahmed Warriach, Deputy District Public Prosecutor for the State.

YLR 2022 LAHORE HIGH COURT LAHORE 921 #

2022 Y L R 921

[Lahore]

Before Mirza Viqas Rauf, J

KHIZER HAYAT KHAN---Petitioner

Versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No. No.69293 of 2020, heard on 21st January, 2021.

Gas (Theft Control and Recovery) Act (XI of 2019)---

----S. 28---Punjab Local Government Act (XIII of 2019), S. 284---Power to request assistance---General powers of Inspectors and Enforcement Officers---Scope---Petitioner was aggrieved of sealing of his Compressed Natural Gas (CNG) filling station---Validity---Petitioner was granted licence by the Oil and Gas Regulatory Authority (OGRA)---Sui Northern Gas Pipelines Limited (SNGPL) conducted a raid on the filling station and found that the petitioner was involved in theft of gas, as a result of which it was sealed, FIR (First Information Report) was lodged and a suit for recovery was also filed under Gas (Theft Control and Recovery) Act, 2016---Petitioner de-sealed the filling station by his own without any formal approval from District Government and started business---SNGPL issued letter to the local government for re-sealing the filling station in pursuance to which it was again sealed---Local government had acted as per mandate of S.28 of the Gas (Theft Control and Recovery) Act, 2016, while invoking the provisions of S.284 of the Punjab Local Government Act, 2019, as such no illegality was committed to that effect---No justifiable reason was made out to interfere with the impugned action of sealing---Constitutional petition was dismissed.

Ch. Imran Raza Chadhar for Petitioner.

Ch. Akbar Ali, Assistant Attorney General for Respondent No.1.

Syed Shadab Hussain Jafri, Assistant Advocate General for Respondents Nos.2 and 4 to 6.

Umar Sharif, Advocate/Legal Advisor with Jehanzeb Anwar, Joint Execution Director, OGRA for Respondent No.3.

YLR 2022 LAHORE HIGH COURT LAHORE 958 #

2022 Y L R 958

[Lahore]

Before Muhammad Tariq Nadeem, J

MUHAMMAD ZAHID AMJAD---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 37739-B of 2021, decided on 4th October, 2021.

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

----Ss. 498 & 161---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Qatl-i-amd, rioting, armed with deadly weapon, common object---Pre-arrest bail, grant of---Delay in recording supplementary statement---Effect---Accused sought pre-arrest bail in FIR registered under Ss. 302, 148 & 149, P.P.C.---Report under S. 173, Cr.P.C., as untraceable case was prepared by the police---No one was nominated in the FIR, however, according to the story of the FIR as well as statements of prosecution witnesses recorded under S. 161, Cr.P.C., the complainant and eye-witnesses had claimed that they could identify the accused persons if they come before them but as per document available on record the complainant previously knew the accused---After the murder of complainant, accused was involved in the case on a written application of the widow of deceased after lapse of two years and three months of the occurrence---Similarly, in support of that application one eye-witness had also got recorded his supplementary statement with delay 3 years---Prosecution lacked sufficient incriminating material to connect the accused with the commission of alleged offence and chances of his false implication with deliberation after consultation could not be ruled out---Pre-arrest bail was allowed, in circumstances.

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

----S. 498---Pre-arrest bail---Mala fide---Scope---Mala fide can be gathered from the facts and circumstances of the case also---Concession of pre-arrest bail being an extraordinary relief is to be granted to protect the innocent persons from the victimization and humiliation at the hands of police through abuse of law for ulterior motive.

Khalil Ahmed Soomro v. The State PLD 2017 SC 730; Shahzada Qaiser Arfat alias Qaiser v. The State and another PLD 2021 SC 708; Khair Muhammad and another v. The State through P.G. Punjab and another 2021 SCMR 130 and Syed Muhammad Firdaus and others v. The State 2005 SCMR 784 rel.

Lal Marjan and another v. Islam Gul and others 2021 SCMR 301 ref.

----S. 498---Pre-arrest bail---Scope---If an accused person has a good case for post-arrest bail then merely at the wish of complainant, he cannot be sent behind the bars for few days by dismissing his application for pre-arrest bail.

Muhammad Aslam v. The State 2000 YLR 1341 ref.

Mushtaq Ahmad Mohal with the Petitioner.

Rai Asif Mehmood, D.P.G. with Badar, S.I. for the State.

YLR 2022 LAHORE HIGH COURT LAHORE 996 #

2022 Y L R 996

[Lahore]

Before Shahid Bilal Hassan, J

MUHAMMAD YOUSAF KHAN---Petitioner

Versus

GHULAM AHMED and others---Respondents

Civil Revision No. 3077 of 2011, decided on 24th September, 2021.

Civil Procedure Code (V of 1908)--

----O.XVII, R.3---Maxim "law helps vigilant and not the indolent"---Applicability---Suit was concurrently dismissed for want of evidence---Held, that petitioner/plaintiff failed to produced witnesses for cross-examination despite availing many opportunities---Petitioner was granted one last opportunity for production of complete evidence with warning that if he failed to avail the same, his right to lead evidence will be closed---Petitioner neither appeared himself in the witness box nor produced his evidence which showed his unyielding adamant attitude towards the orders of Court---Petitioner could not seek favour of law because law favours the vigilant and not the indolent---Revision petition was dismissed accordingly.

Rana Tanveer Khan v. Naseer-ud-Din and others 2015 SCMR 1401 and Moon Enterpriser CNG Station, Rawalpindi v. Sui Northern Gas Pipelines Ltd through General Manager, Rawalpindi and another 2020 SCMR 300 rel.

Nemo for Petitioner.

YLR 2022 LAHORE HIGH COURT LAHORE 999 #

2022 Y L R 999

[Lahore (Multan Bench)]

Before Syed Shahbaz Ali Rizvi and Ali Zia Bajwa, JJ

AQEEL HUSSAIN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 472 and 616 of 2016, heard on 25th October, 2021.

(a) Criminal trial---

----Medical evidence--- Scope--- Medical evidence neither pinpoint the perpetrator of the crime nor was corroborative in nature, rather it was a confirmatory piece of evidence to the extent of locale and specification of injury, cause of injury and time when injury was caused.

Muhammad Mansha v. The State 2018 SCMR 772; Muhammad Sharif and another v. The State 1997 SCMR 866; Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Dildar Hussain v. Muhammad Afzaal alias Chala and others PLD 2004 SC 663; Abdul Majeed v. Mulazim Hussain and others PLD 2007 SC 637; Hashim Qasim and another v. The State 2017 SCMR 986 and Naveed Asghar v. State PLD 2021 SC 600 rel.

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

----Ss. 336 & 336-B---Anti-Terrorism Act (XXVII of 1997), S. 7---Itlaf-i-salahiyyat-i-udw, hurt caused by corrosive substance, act of terrorism---Appreciation of evidence---Ocular account not supported by medical evidence---Prosecution case was that the accused threw jug full of acid over brother of the complainant, which resulted in injuries on his face, eyes and chest---Present matter was a typical case of vitriolage whereby, face of the victim was permanently mutilated and his eyesight was lost in a gruesome manner---Vital question was whether the accused was the culprit who committed the alleged occurrence---Court had to appraise the probative value of ocular account tendered by the prosecution to determine the culpability of accused as conviction could only be sustained on the strength of such evidence---Record showed that the statements of the prosecution witnesses were not only at variance with each other but also ran contrary to story narrated in the crime report qua the role of accused persons played in the occurrence and manner in which it was committed---Material improvements were made by the prosecution witnesses which further made their credibility doubtful---Moreover, it did not appeal to common sense that jug full of corrosive substance was thrown on the victim by all the accused persons together as stated by the prosecution witnesses or even by two accused as narrated in the crime report---Thus, it seemed that a wider net had been knitted to implicate additional accused along with the actual culprit---Ocular account being replete with material improvements, contradictions, discrepancies and inconsistencies was untrustworthy, therefore, same could not be relied upon to sustain the conviction of accused---Prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

----Witnesses---Dishonest improvements---Effect--- Improvements once found deliberate and dishonest cast serious doubt on the veracity of witnesses.

(d) Criminal trial---

----Minor discrepancies---Scope---While appreciating the evidence, court must not attach undue importance to minor discrepancies--- Discrepancies which did not shake the basic version of the prosecution case should be ignored.

Appabhai v. State of Gujarat AIR 1988 SC 694 [1988 Cri.LJ 848] rel.

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

(f) Criminal trial---

----Motive---Scope---Existence of motive/ enmity was neither substantive nor direct evidence--- Motive was not a corroborative piece of evidence either---Motive/enmity was only a circumstance, which might lead to the commission of an offence---Motive was a starting point for committing a crime, but under no circumstances it could be taken as substantive piece of evidence---Further, motive/enmity was a double-edged weapon---Offence might be perpetrated because of the existence of the motive/enmity and it could also be a basis of a false charge.

Akbar Ali v. The State 2007 SCMR 486; Muhammad Noor's case 1991 SCMR 643 and Dr. Israr-ul-Haq v. Muhammad Fayyaz and another 2007 SCMR 1427 rel.

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

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

----Ss. 336 & 336-B---Anti-Terrorism Act (XXVII of 1997), S. 7---Itlaf-i-salahiyyat-i-udw, hurt caused by corrosive substance, act of terrorism---Appreciation of evidence---Acquittal of co-accused on basis of same testimony of witnesses---Effect---Prosecution case was that the accused threw jug full of acid over brother of the complainant, which resulted in injuries on his face, eyes and chest---In the FIR, four accused persons were nominated and 4/5 accused were stated to be unknown---Four nominated accused were summoned to stand the trial---Principal accused having direct motive was acquitted by the Trial Court and appeal against his acquittal was also dismissed as not pressed---Two co-accused persons were also acquitted after disbelieving the ocular account---Where two co-accused were acquitted discarding the testimony of prosecution witnesses, conviction of other co-accused could not be based on the testimony of same set of witnesses in absence of strong and independent evidence---Such independent and strong corroboration was evidently missing in the present case, necessary to sustain the conviction of accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

Altaf Hussain v. State 2019 SCMR 274; Akhtar Ali and others v. The State 2008 SCMR 6; Ghulam Muhammad's case PLD 1975 SC 588; Sheral alias Sher Muhammad's case 1999 SCMR 697 and Ata Muhammad's case 1995 SCMR 599 rel.

(i) Criminal trial---

----Benefit of doubt---Principle---If a single reasonable doubt is available in the prosecution case, accused would be entitled to the benefit of doubt, not as a matter of grace and concession but as a matter of right.

Muhammad Imran v. The State 2020 SCMR 857; Abdul Jabbar and another v. The State 2019 SCMR 129; Mst. Asia Bibi v. The State and others PLD 2019 SC 64; Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652; Gul Dast Khan v. The State 2009 SCMR 431 and Daniel Body (Muslim name Saifullah) and another v. The State 1992 SCMR 196 rel.

James Joseph for Appellant.

Ch. Muhammad Ali Shohab, Deputy Prosecutor General for the State.

Rana Muhammad Nadeem Kanjoo for the Complainant (in Criminal Appeal No.472 of 2016) and (for Appellant in Criminal Appeal No. 616 of 2016).

YLR 2022 LAHORE HIGH COURT LAHORE 1028 #

2022 Y L R 1028

[Lahore]

Before Ch. Muhammad Iqbal, J

Mst. KAUSAR BIBI---Petitioner

Versus

MUHAMMAD SARWAR and others---Respondents

Civil Revision No. 1291 of 2011, heard on 15th November, 2021.

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

----Arts.17, 79 & 80---Agreement to sell---Proof---Respondent/plaintiff alleged that he had purchased the land through agreement to sell dated 07-07-1992 with its owner against consideration of Rs.250,000/- and paid Rs.200,000/- as earnest money; that the owner had died on 21-08-1992; and that the legal heirs of the deceased refused to perform part of the agreement to execute the sale deed---Suit was decreed on 04-12-1993---Petitioner (widow of the deceased) along with other respondents submitted application under S.12(2) which was allowed on 31-03-2001---Respondent's suit was dismissed by Trial Court on 24-04-2009 and his appeal was allowed by appellate Court on 09-02-2011---Validity---Petitioner as witness deposed before that no agreement was executed by her husband/deceased in favour of plaintiff nor he received any consideration; that plaintiff committed fraud; that after death of her husband, respondent told her to accompany him for some help and took her with him; that he told her that he had transferred the land in her name and forcibly got her thumb impressions; that she refused to impose thumb impression; that she filed application under S.12(2) of C.P.C.; that the stamp paper was a forged document; that her husband was an educated person; and that she was an illiterate woman---Neither respondent nor his witnesses had described the exact date of the execution of alleged agreement to sell in evidence---One marginal witness of said agreement was produced and nothing had been disclosed qua the second marginal witness---Mandatory provisions of Arts. 17 & 79 of Qanun-e-Shahadat, 1984, had not been complied with---Respondent, therefore, had failed to prove the execution of the said agreement---Respondent did not make any effort to prove the alleged agreement to sell through the mode prescribed under Art. 80 of Qanun-e-Shahadat, 1984---Court's order dated allowing petitioner's application under S.12(2) was challenged by respondent but the same remained intact by appellate Court and attained finality---Revision petition was allowed accordingly.

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

----S. 12(2)---Fraud---Principle---Fraud vitiates the most solemn proceedings and any ill-gotten gain achieved by committing fraud cannot be validated under any legal norms/laws.

Muhammad Attique v. Jami Limited and others PLD 2010 SC 993; Khursheed Begum and others v. Inam-ur-Rehman Khan and others PLD 2009 Lah. 552; Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 and Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd. 2010 SCMR 1097 rel.

----S. 12---Specific performance---Relief, discretionary nature of---Scope---Grant of decree for specific performance comes within the sole discretionary power of the court which can refuse to grant the relief on the principles of equity even if the suitor has proven the case.

Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others 2019 SCMR 524 and Muhammad Miskeen v. District Judge Attock and others 2020 SCMR 406 rel.

Syed Muhammad Aslam Rizvi for Petitioner (in Civil Revision No. 1291 of 2011).

Abdul Shakoor Chaudhary for Respondents Nos. 2, 3 and 5 (in the instant case and for petitioners in connected Civil Revision No. 515 of 2011).

Ch. Zahoor-ul-Haq and Ch. Muhammad Anwar Bhour for Respondent No.1.

YLR 2022 LAHORE HIGH COURT LAHORE 1051 #

2022 Y L R 1051

[Lahore]

Before Muhammad Raza Qureshi, J

Mst. SAIRA ARIF---Petitioner

Versus

AMIR ALI---Respondent

Transfer Application No. 35804 of 2021, heard on 7th July, 2021.

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

----S. 25-A---Civil Procedure Code (V of 1908), S. 24---Transfer of case---Conversion of proceedings---Scope---Applicant sought transfer of suit filed by her husband in the court of plenary jurisdiction seeking declaration and recovery of gold ornaments to the district where she was residing on the ground that a suit for dissolution of marriage and recovery of maintenance was already pending in the said district---Contention of respondent was that the application under S. 25-A of Family Courts Act, 1964, was not maintainable---Validity---Generally, in matrimonial disputes, the forum of convenience for a wife took precedent---Partial cause of action of the suit filed by husband had accrued at the district where his wife was residing---Husband was already travelling from his district to another to contest the suit filed by his wife, therefore, the transfer of his suit would not cause any hardship---High Court converted the transfer application from S. 25-A of Family Courts Act, 1964, into an application under S. 24 of C.P.C. and transferred the suit of husband to the district where his wife was residing---Transfer application was allowed, in circumstances.

Abdul Aziz and others v. Sheikh Abdur Rahim and others PLD 1984 SC 164 ref.

Jane Margrete William v. Abdul Hamid Mian 1994 SCMR 1555 and Muhammad Akram v. DCO, Rahimyarkhan and others 2017 SCMR 56 rel.

(b) Administration of justice---

----Technical rules unless insurmountable should yield to interest of substantial justice.

Muhammad Younas Hanjra for Applicant.

Amir Ali Respondent in person.

YLR 2022 LAHORE HIGH COURT LAHORE 1077 #

2022 Y L R 1077

[Lahore]

Before Rasaal Hasan Syed, J

ANJUM SARWAR BUTT and another---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, GUJRANWALA and 2 others---Respondents

Writ Petition No. 54744 of 2019, heard on 9th December, 2020.

Punjab Pre-emption Act (IX of 1991)---

----S. 24(2)---Suit for pre-emption by shafi-e-sharik---Zar-e-soim to be deposited within 30 days---Direction of Court---Petitioner's application that suit was liable to be dismissed as zar-e-soim had not been deposited within time (30 days from filing of suit) was concurrently dismissed---Held, that provision of S.24 of Punjab Pre-emption Act, 1991, were mandated to verify bona fide of the pre-emptor and for the same reason consequential penalty in event of violation of the order was provided---Section 24, Punjab Pre-emption Act, 1991 pre-required a direction for deposit of the amount of zar-e-soim with a view to attract the consequential penalty and party could not suffer on account of any omission on part of the court to give such direction---Suit was filed during summer vacations but no order was made for deposit Zar-e-soim on resumption of courts work after summer vacations pre-emptor was directed to deposit zar-e-soim within 30 days and to affix the court-fee and case was adjourned---Respondent/ pre-emptor without wasting time promptly deposited within 4 days of said order and filed paid challan on date fixed---Such dispatch of respondent was consistent with the spirit of promptitude and constituted reasonable and prudent approach that did not attract attribution of delay---Court's omission could prejudice no one in peculiar situation---Constitutional petition was dismissed accordingly.

Sadaqat Mehmood Butt for Petitioners.

Irfan Saeed for Respondent No.3.

YLR 2022 LAHORE HIGH COURT LAHORE 1118 #

2022 Y L R 1118

[Lahore (Multan Bench)]

Before Shahid Bilal Hassan, J

Mst. SHAKEELA NAZ---Petitioner

Versus

Mst. NAZIR BEGUM through L.Rs. and others---Respondents

Civil Revision No. 1220-D of 2002, decided on 13th July, 2021.

Civil Procedure Code (V of 1908)---

----O. VI, R. 15 & S. 2(2)---Suit for partition---Defendant/petitioner in written statement contended that half portion of the suit land was given to his wife as dower by his father/predecessor in interest of the plaintiffs and defendant---Petitioner/wife of defendant/ petitioner was not initially party to suit, however, she subsequently entered into the suit and adopted the same written statement submitted by her husband---Suit was decreed---Appeal of the petitioner was accepted and case was remanded with observation that decree be treated as preliminary---Held, that omission to verify the pleadings on oath or on solemn affirmation was merely a procedural defect and the same could be rectified at any stage of the proceedings---Petitioner neither submitted written statement which was verified on oath nor appeared in the witness box so as to depose on oath in support of her version---Courts below had rightly concluded that the petitioner had failed to prove her case by leading unimpeachable evidence---Nikahnama did not bear signatures of father/ predecessor in interest of the respondents (including husband of the petitioner)---Appellate Court ordered the decree to be treated as preliminary instead of final, whereas the findings recorded by Trial Court were kept intact---Trial Court misapprehended/misconceived the judgment passed by the Appellate Court and passed decree excluding half portion of the disputed property, but actually its prior decree had attained finality---Signatures of counsel for parties were obtained on the margin of the order sheet---Petitioners had given consent to proceed with the matter as per direction of Appellate Court, so she could not take a u-turn/other stance---Revision petition was dismissed accordingly.

Syed Muhammad Ali Gilani for Petitioner.

YLR 2022 LAHORE HIGH COURT LAHORE 1131 #

2022 Y L R 1131

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf and Raheel Kamran, JJ

MUHAMMAD USMAN---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, RAWALPINDI and 3 others---Respondents

Writ Petition No.2594 of 2021, decided on 8th December, 2021.

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

----O. XXVII-A--- Notice to Attorney General and Advocate General---Effect---Notice in terms of O. XXVII-A, C.P.C. is mandatory---Non-compliance to provision of O. XXVII-A, C.P.C. renders judgment nullity in the eye of law---Personal appearance of Attorney General for Pakistan if question of law concerns of Federal Government and Advocate General of the Province if question of law concerns a Provincial Government as the case may be, is necessary.

Maha Seedmen Association and others v. Union of India, Ministry of Agriculture, through its Secretary 2018 3 AIR Bom. R 628; Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others v. Aftab Ahmad Khan Sherpao and others PLD 1992 SC 723; Federal Public Service Commission and others v. Syed Muhammad Afaq and others PLD 2002 SC 167; Superintendent Central Jail, Adyala, Rawalpindi v. Hammad Abbasi PLD 2013 SC 223 and Haji Ghulam Ahmad Bilour v. Muhammad Khurshid Khan and 2 others 1997 MLD 3079 rel.

(b) Constitution of Pakistan---

----Art. 140---"Advocate General" and "Assistant Advocate General"---Distinction---Appointment of Advocate General is a Constitutional appointment whereas appointment of an Assistant Advocate General is made under statute / rules which also apply to the office of Additional Advocate General as well.

M. Ashraf Khan, Advocate Supreme Court of Pakistan v. Secretary Law, Parliamentary Affairs and Human Rights, Government of The Punjab, Lahore and 19 others PLD 2008 Lah. 312 rel.

----Ss. 4(n), 22-A, 22-B, 154 & Sched. II---Police Order (22 of 2002), Arts. 148, 149, 150, 151, 152, 153, 155, 156. 157 & 158---Constitution of Pakistan, Art. 199---Constitutional petition---Excess of power, offence of---Cognizance---General and special law---Applicability---Petitioner was a police officer against whom Ex-officio Justice of Peace directed Station House Officer of police station concerned to record under S.154, Cr.P.C. version of respondent/complainant---Plea raised by petitioner was that Art. 153 of Police Order, 2002, categorically defined offences falling under Arts. 148 to 152 of Police Order, 2002 as cognizable, so no other offences including offence under Art. 155(c) of Police Order, 2002, could be termed as such---Validity---Various offences and punishments are defined and categorized in two separate Chapters i.e. Chaps. XVI & XVII of Police Order, 2002---Offences committed by private persons are dealt with in Chap. XVI of Police Order, 2002, which provide minor penalties and are triable in a summary manner in terms of Art. 154 of Police Order, 2002---Though offences under Arts. 148 to 152 of Police Order, 2002, are providing minor punishments and in ordinary course they can easily be termed as non-cognizable in light of S.4(n) read with Sched. II, Cr.P.C. relating to offences against other laws---Such offences despite being minor in nature were made cognizable by virtue of Art. 153 of Police Order, 2002---Provisions of Art. 153 as well as offences under Arts. 148 to 152 of Police Order, 2002, were part of Chap. XVI of Police Order, 2002---Provisions of Art. 153 of Police Order, 2002 was only relatable and restricted to offences under Chap. XVI of Police Order, 2002---When on a particular point of law or fact if a special statute was silent then provisions of general law would prevail---Provisions of Criminal Procedure Code, 1898, were not ousted by any of the provisions of Police Order, 2002, so in order to determine nature of offence under Art. 155 of Police Order, 2002, Court was to advert to Criminal Procedure Code, 1898---High Court declined to interfere in the order passed by Ex-officio Justice of Peace as offence under Art. 155 of Police Order, 2002 was cognizable---Constitutional petition was dismissed, in circumstances.

Muhammad Shafi v. S.H.O. and others 2012 YLR 828; Shahid Hussain and another v. Additional Sessions Judge, Taunsa Sharif Distt. D.G. Khan and others 2011 YLR 294; Khuda Bakhsh v. Additional Sessions Judge, D.G. Khan and 3 others 2010 YLR 2622; Senator Asif Ali Zardari v. The State 2000 MLD 921; Egon Zehnder Ltd. v. Tillman 2019 SCMR 1837; 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; Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others PLD 1994 SC 281; Muhammad Abbas v. The State PLD 1981 SC 642; Zulfiqar v. Additional Sessions Judge/Ex-Officio Justice of Peace, Lahore and 2 others 2021 PCr.LJ 1779; Haji Rehman SHO and 3 others v. Provincial Police Officer, Government of Khyber Pakhtunkhwa, Peshawar and 5 others 2012 PCr.LJ 1526; Masood Ahmad Javed v. The State and 5 others 2006 MLD 855; Naseem Akhtar Khan v. District and Sessions Judge PLD 2005 Kar. 285; Shabbir Ahmad v. The State PLD 1981 Lah 599; Muhammad Ameen and others v. The State and others 2019 PCr.LJ 1172; Asghar Ali v. The State and another 2012 YLR 18; Haji Muhammad Qasim and others v. 1. Muhammad Jahangir Khan 2. The State 2007 YLR 3209; Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others 2006 CLD 625; Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539; Muhammad Javed Tariq v. Station House Officer Police Station Fareed Town Sahiwal and 2 others PLJ 2014 Lah. 161; Muhammad Zubair Malik v. S.H.O. and 5 others 2008 PCr.LJ 1358; Tariq Aziz v. Mst. Kalsoom Bibi and others 2012 PCr.LJ 891; Haider Ali and another v. DPO Chakwal and others 2015 SCMR 1724; Sakhawat Hussain Shah v. The State and 3 others 2006 PCr.LJ 1564; Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others 2006 SCMR 483 and Masood Ahmad Javed v. The State and 5 others 2006 MLD 855 ref.

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

----Ss. 154 & 204--- "Investigation" and "prosecution"--- Distinction---Registration of first information report (FIR) and prosecution of offence are altogether distinct and different phenomena.

(e) Interpretation of statutes---

----Meaning of statute--- Principle---While interpreting a statute no other meaning can be derived except those mentioned in the statute itself---Any import in such respect is alien to the object and scheme of the statute.

Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470 rel.

Basharat Ullah Khan for Petitioner.

Ahmed Awais, Advocate General Punjab, Mujeeb ur Rehman Kiani, Additional Advocate General and Qaiser Abbas Shah, Assistant Advocate General for Respondents Nos. 1, 3 and 4.

Sohail Ikram for Respondent No.2.

Tanveer Iqbal and Ch. Imran Hassan Ali, Amici Curiae.

YLR 2022 LAHORE HIGH COURT LAHORE 1171 #

2022 Y L R 1171

[Lahore]

Before Asim Hafeez, J

CANTONMENT BOARD, SARGODHA through Executive Officer Cantonment Board---Appellant

Versus

SHAHBAZ FAROOQ and 2 others---Respondents

Civil Revision No. 56466 of 2019, decided on 23rd July, 2021.

Cantonments Ordinance (CXXXVIIof 2002)---

----S. 170(1)---Amenity plot---Raising of residential structure on amenity plot---Issuance of no objection certificate---Suit of respondent was decreed---Petitioner's/ defendant's appeal was dismissed---Question as to whether amenity plot could be converted into a residential plot---Held, that Master plan/map was duly approved by the Cantonment Board and was also acted upon---Sale-deed was executed subsequent to the approval of Master plan/map---Mere execution of sale deed would not extend any right unto respondents to claim conversion of amenity plot into residential when Master plan/map of the housing scheme remained unrevised/unaltered---Limitations prescribed/defined in the Master plan/map would have preference---Neither the developer was impleaded as party to the proceedings nor same was produced as witness---None of the residents were impleaded as party to the suit, whose interest were intertwined with the determination of the controversy---Board was not obligated to effect extinguishment of amenity area by allowing conversion to residential area which per se was the violation of the Master plan/map and also prejudicial to the rights of the residents---Declared amenity plot could not be effaced/ removed from the master plan without adopting the procedures, if so, provided in law for alteration of plan/map---Revision petition against the decisions of the Courts below was allowed.

Muhammad Anwar Chaudhry for Appellant.

Ch. Armghan Ahmad Pasha for Respondents.

YLR 2022 LAHORE HIGH COURT LAHORE 1184 #

2022 Y L R 1184

[Lahore (Multan Bench)]

Before Abid Aziz Sheikh, J

FAROOQ AHMAD---Petitioner

Versus

RASHID AHMAD and 10 others---Respondents

Civil Revision No. 441-D of 2013, decided on 8th February, 2021.

Punjab Pre-emption Act (IX of 1991)---

----S.13(2)---Suit for possession through pre-emption--- Talb -i- Muwathibat---Exchange or sale---Proof---Petitioner-pre-emptor filed suit on the plea that transaction in question was in fact a sale and not exchange---Trial Court and Lower Appellate Court concurrently dismissed suit and appeal filed by petitioner-pre-emptor--- Petitioner-pre-emptor contended that value and area of exchanged property were disproportionate and transaction was given colour of exchange to defeat right of pre-emption---Validity---Intention of parties was to be gathered from contents of document and ostensible exchange transaction should not be dis-believed unless it was established positively that the same was in fact a sale transaction---To controvert ostensible nature of transaction of exchange and to prove it as a sale, petitioner-pre-emptor was required to lead some evidence to show as to when parties to the exchange agreed for sale but with an object to circumvent right of petitioner pre-emptor and diverted the transaction as exchange---Evidence led by petitioner-pre-emptor was vague and sketchy---No proof of date, day, time, place and nature of negotiations between respondents-defendants regarding sale was available---No witness produced in whose presence, price was settled or paid by respondents-defendants---Entire evidence was hearsay evidence and not sufficient to prove transaction of sale---Once it was established that at the time of institution of suit, vendees by way of exchange mutation diverted rights in the property but petitioner-pre-emptor did not even fulfil requirements of "Talb" under S.13(2) of Punjab Pre-emption Act, 1991---Revision was dismissed, in circumstances.

Muhammad Taj v. Ali Akhtar 2012 CLC 853; Muhammad Hayat v. Sikandar Abbas 2007 CLC 961 and Muhammad Anwar v. Bashir Ahmad and another 2014 CLC 1819 rel.

YLR 2022 LAHORE HIGH COURT LAHORE 1187 #

2022 Y L R 1187

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

MUNAZIR ALI RANJHA---Petitioner

Versus

MUHAMMAD AHMAD SAQIB and others---Respondents

Writ Petition No. 72503 of 2021, decided on 16th February, 2022.

Constitution of Pakistan---

----Art. 199---General Clauses Act (X of 1897), S.24-A---Constitutional petition---Reasons for decision---Scope---Petitioner/ defendant assailed the concurrent dismissal of his application for cancellation of written statement as well as power of attorney---Contention of petitioner, inter alia, was that he neither appointed any Advocate nor authorized any person to file conceding written statement on his behalf---Validity---Revisional Court had neither noted the contentions of petitioner nor properly thrashed out while passing impugned order, thus, same lacked valid lawful reasons and was passed in violation of the provisions of S. 24-A of General Clauses Act, 1897, which had bound down the Judge to assign reasoning and pass speaking order/judgment---Where the reasons were not forthcoming from the impugned order/judgment, the High Court was deprived of the valuable views of the subordinate forum---Impugned revisional order was amenable to the constitutional jurisdiction of the High Court---Constitutional petition was allowed and the case was remanded to the Revisional Court for decision afresh.

Province of Sindh through Secretary Education, Government of Sindh, Karachi and 3 others v. Miss Saima Bano and others 2003 SCMR 1126; Muhammad Farooq Shah v. Shakirullah 2006 SCMR 1657; Abdul Majeed Zafar and others v. Governor of the Punjab through Chief Secretary and others 2007 SCMR 330; Umar Din through L.Rs. v. Mst. Shakeela Bibi and others 2009 SCMR 29; Secretary Ministry of Health, Government of Pakistan, Islamabad and another v. Dr. Rehana Hameed and others 2010 SCMR 511; Government of Pakistan through Director-General, Ministry of Interior, Islamabad and others v. Farheen Rashid 2011 SCMR 1 and Messrs MFMY Industries Ltd. and others v. Federation of Pakistan through Ministry of Commerce and others 2015 SCMR 1550 ref.

Sheraz Zaka for Petitioner.

YLR 2022 LAHORE HIGH COURT LAHORE 1193 #

2022 Y L R 1193

[Lahore]

Before Malik Shahzad Ahmad Khan and Muhammad Tariq Nadeem, JJ

MUHAMMAD JAVED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.119423 and Murder Reference No.653 of 2017, heard on 26th October, 2021.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of four hours and fifty five minutes in conducting the post-mortem of the deceased---Scope---Prosecution case was that the accused in furtherance of their common intention committed the murder of the brother of complainant---Incident in the present case, according to the prosecution, was alleged to have taken place at 01.45 pm and the same was reported by complainant through complaint on the same day on the basis of which formal FIR was chalked out at 03.15 pm within a period of one and half hour---According to the post-mortem report, the dead body was received in the dead house at 07.00 p.m., whereas the post-mortem was conducted on the same day at 08.10 pm---Keeping in view that material discrepancy arising out from the prosecution case, an adverse inference to the prosecution's case could be drawn that the intervening period had been consumed in fabricating a story after preliminary investigation and to wait for the relatives of the deceased, who were made witnesses subsequently, otherwise there was no justification for not dispatching the dead body to the mortuary and providing police papers with such delay---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.

Muhammad Adnan and another v. the State and others 2021 SCMR 16; Sufyan Nawaz and another v. The State and others 2020 SCMR 192; Irshad Ahmad v. The State 2011 SCMR 1190; Muhammad Ashraf v. The State 2012 SCMR 419 and Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Presence of eye-witnesses at the spot at the relevant time was not natural---Chance witnesses---Scope---Prosecution case was that the accused in furtherance of their common intention committed the murder of the brother of complainant---Ocular account of the prosecution was produced through two witnesses---Both the said witnesses were sons of deceased---Prosecution case was that the occurrence took place near fisheries farm---Both the witnesses were admittedly residents of other Tehsil, which was situated at a distance of 09 kilometers away from the Police Station and 01 kilometer away from the place of occurrence as stated by witness---Presence of the said eye-witnesses at the spot at the relevant time was not natural, thus, it was mandatory for the said eye witnesses to justify their presence at the place of occurrence at the relevant time through some cogent reason---In order to justify their presence at the spot at the relevant time, both the eye witnesses stated that on the day of occurrence, they were hunting near fisheries farm in the area of the Tehsil along with their deceased father and paternal uncle---Other eye-witness, clarified in his examination-in-chief that they were fishing near fisheries farm and on the same day at 1:45 p.m., the occurrence took place---Eye-witnesses could not justify the reason given by them for their presence at the place of occurrence at the relevant time---Thus, said witnesses were chance witnesses and as such their evidence was not free from doubt---Record showed that the said eye-witnesses were not witnesses of inquest report and post-mortem pertaining to deceased---Had said witnesses been present at the scene of the occurrence at the relevant time, they must have been the witnesses of inquest report---Similarly, said witnesses should have escorted the dead body to the hospital being the close relatives and their names should have been incorporated in the post mortem report in the column identification of the dead body---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.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Muhammad Irshad v. Allah Ditta and others 2017 SCMR 142; Sufyan Nawaz and another v. The State and others 2020 SCMR 192; Abdul Jabbar alias Jabri v. The State 2017 SCMR 1155 and Nadeem alias Kala v. The State and others 2018 SCMR 153 rel.

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Medical evidence---Scope---Prosecution case was that the accused in furtherance of their common intention committed the murder of the brother of complainant---Prosecution case was that, the accused made indiscriminate firing with pistol 30 bore upon deceased, which landed on front of his chest, the bicep of left arm, the right, left and middle of the head, upper side of left eye, right hand and shank of right leg---Eye-witnesses while appearing before the trial court in the witness box had described injuries on the chest, shoulders, head and on the legs of deceased---Medical Officer had observed 09 entry wounds on the body of deceased---Contents of FIR, showed that the accused made three fire shots on the head of deceased whereas according to the post-mortem report, there was only one entry wound on the head of deceased whereas other injuries, which were on left eye brow, on tip of left scapula and near the tip of left shoulder of the deceased respectively and which were entry wounds had not been described by the witnesses---Said fact depicted that eye witnesses were not present at the place of occurrence---Had the said witnesses been present at the relevant time they must have described the exact number and seat of injuries---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.

Muhabbat Khan v. Fateh Muhammad and 2 others PLD 1976 SC 593; Muhammad Nawaz v. The State 1983 SCMR 1316; Abdul Jabbar and another v. The State 2019 SCMR 129 and Liaqat Ali and another v. The State and others 2021 SCMR 780 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence on the disclosure of accused---Reliance---Scope---Prosecution case was that the accused in furtherance of their common intention committed the murder of the brother of complainant---Record showed that pistol 30 bore was recovered by the police on the disclosure and pointation of the accused from his residential house---No empty was secured from the spot by the Investigating Agency, therefore, the report of Forensic Science Agency was confined to working condition of pistol 30 bore allegedly recovered at the instance of the accused---Said piece of evidence had rightly been discarded from consideration by the Trial Court---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.

(e) 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 in furtherance of their common intention committed the murder of the brother of complainant---Motive behind the occurrence was that one and half year before the occurrence, brother of the complainant had abducted sister of accused, due to that grudge, occurrence took place---To prove the motive part of the occurrence, evidence of complainant was very vital, who happened to be the brother of the deceased but he had not got recorded any statement in support of prosecution case---Moreover, no documentary evidence in the shape of registration of any FIR etc. had been produced by the prosecution in that regard---Trial Court had rightly disbelieved the motive part of the occurrence---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.

(f) Criminal trial---

----Motive---Scope---Prosecution is not under obligation to establish motive in every case of murder---If prosecution set up a motive but failed to prove same, then it was the prosecution who had to suffer and not the accused.

Noor Muhammad v. The State and another 2010 SCMR 97; Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344; Manzoor Ahmed Shah and others v. The State and others 2019 SCMR 2000; Muhammad Ilyas and another v. Ameer Ali and another 2020 SCMR 305; Liaqat Ali and another v. The State and others 2021 SCMR 780 and Khalid Mehmood and others v. The State and others 2021 SCMR 810 rel.

(g) Criminal trial---

----Benefit of doubt---Principle---Even a single circumstance creating doubt in a prudent mind was sufficient, benefit thereof would accrue in favour of the accused as matter of right and not of grace.

Muhammad Mansha v. The State 2018 SCMR 772; Muhammad Imran v. The State 2020 SCMR 857 and Najaf Ali Shah v. The State 2021 SCMR 736 rel.

Sardar Muhamamd Ramzan for Appellant.

Sultan Akbar Chattha, D.P.G. for the State.

Mukhdoom Muhammad Adnan and Rao Faheem Akhtar Khan for the Complainant.

YLR 2022 LAHORE HIGH COURT LAHORE 1238 #

2022 Y L R 1238

[Lahore (Multan Bench)]

Before Muhammad Shan Gul and Ali Zia Bajwa, JJ

NADEEM AKHTAR---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.94 of 2017, heard on 13th October, 2021.

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

----S. 9(c)--- Recovery of narcotic substance---Appreciation of evidence---Benefit of doubt---Safe custody and transmission of samples of the narcotic from the police to the Chemical Examiner was not established---Effect---Allegation against the accused was that three kilos and 981 grams of heroin was recovered from his possession---According to prosecution version, the complainant handed over the case property to a constable, who was not produced as a witness during the course of trial---Said constable was neither cited as a witness in the calendar of witnesses nor his statement was recorded during the course of trial---Safe custody of the case property in that case had been compromised---Prosecution was under bounden duty to establish every limb of safe custody of the recovered contraband---In case it was not established beyond doubt, the same could not be used against the accused---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.

Mst. Sakina Ramzan v. The State 2021 SCMR 451 and Zahir Shah alias Shat v. The State through Advocate-General, Khyber Pakhtunkhwa 2019 SCMR 2004 rel.

(b) Criminal trial---

----Benefit of doubt---Principle---Single circumstance creating reasonable doubt will be sufficient to smash 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.

Qaisarullah and others v. The State 2009 SCMR 579 and Kamran Shah and others v. The State and others 2019 SCMR 1217 rel.

Muhammad Luqman and Rao Matloob Ahmed for Appellant.

Mohammad Ali Shohab, Deputy Prosecutor General for the State.

YLR 2022 LAHORE HIGH COURT LAHORE 1257 #

2022 Y L R 1257

[Lahore (Bahawalpur Bench)]

Before Muhammad Amjad Rafiq, J

KHIZER ABBAS and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 306 and 358 and Criminal Revision No.84 of 2018, heard on 21st October, 2021.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Presence of eye-witnesses at the place of occurrence was doubtful---Scope---Accused were charged for committing murder of the brother of complainant---Prosecution case mainly stood on ocular account which was led by complainant and his son---Complainant deposed during cross-examination that he was present at a place which was very close where the occurrence took place and he reached to the place of occurrence on hearing the noise yet he did not intervene to desist accused persons from causing injuries to the deceased---Said conduct of complainant become further doubtful when he said during cross examination that accused did not bring any kind of weapon from their house and accused remained pressing the throat of deceased for 6/7 minutes---Complainant further deposed that his son/witness and deceased were cutting grass with sickles near the place of occurrence and he too was working in nearby fields---One of the witnesses who was resident of 10-kilomters away from the house of the complainant could be an independent witness but he was not produced before the Court as witness---Such was beyond comprehension that when the complainant party consisting upon three witnesses and a deceased person, more than that a witness and the deceased were having sickles in their hands, did not react to the attack of accused persons by the use of such sickles---Son of complainant/witness stated that he was present along with the deceased when accused attacked upon him and admitted that accused persons were younger to him yet he did not react to save his uncle from the clutches of the accused---Said witness also admitted that they did not produce grass, sickles or donkey cart before the police---Said part of evidence clearly showed that these two witnesses were actually not present at the place of occurrence at the relevant time---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Saeed Ahmed v. The State 2015 PSC (Crl.) 335 ref.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Medical evidence was not found supportive to the ocular account---Scope---Accused were charged for committing murder of the brother of complainant---Medical Officer gave his final opinion that most probably the case was that of throttling---Observation of Medical Officer if on one side was considered that death was caused due to throttling then some symptoms on the face, nose, lips or around the neck should have appeared to support the case of throttling---Throttling, in some cases left apparent marks of violence yet in such cases the death should have been occurred immediately due to closure of windpipe---Complainant had stated that when they took the deceased he was alive but unconscious and on their way to hospital, he died after 20-25 minutes of the occurrence which showed that it was not a case of death due to immediate loss of breath---Investigating Officer had not observed any signs of struggle at the place of occurrence---Deceased was a healthy man of 40-years while witnesses too were present---Even draftsman who prepared scaled site plan did not depose anything about that fact---Accused was giving fist blows on the chest of deceased, yet Medical Officer had observed no injury and marks of violence on chest of the deceased---Accused remained pressing the throat for 6/7 minutes, yet Investigating Officer did not bother to lift the finger prints on the neck of the deceased nor the Medical Officer had performed that function, therefore, prosecution case remained shrouded in mystery and actual facts could not be surfaced to light---Said references showed that in case of throttling there must be some signs or marks of violence around the neck otherwise, it could be suspected that asphyxia was due to some other reasons like internal diseases---Medical evidence was not found supportive to ocular account---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Khadim Hussain and another v. The State 1988 PCr.LJ 970; Muhammad Zahid v. The State and another 2020 YLR 2018 and Muhammad Safdar through Attorney v. The State 2016 MLD 1325 rel.

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Motive was not proved--- Scope--- Accused were charged for committing murder of the brother of complainant---Dispute on purchase of land by the deceased which the accused wanted to purchase, was the motive behind the alleged occurrence---First altercation between accused and deceased took place on the very day of occurrence---Witnesses during cross examination stated that deceased purchased land measuring 2-acres 2½ years prior to the occurrence---Admittedly, both the parties were living for the last five to six years in nearby houses situated in front of each other and no quarrel took place over such motive ever---No civil suit was instituted by the accused against seller of land or the complainant or witnesses regarding said land---During that period accused did not attempt to take possession of said land---Even prosecution had not produced proof of purchase of such land before the police nor produced its seller as witness to the motive---All that showed that prosecution had come up with very week motive and that too proofless which had no bearing or contribution in augmenting the cause against the accused---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Syed Zeeshan Haider for the Appellants.

Rao Riaz Ahmad Khan, Deputy District Public Prosecutor for the State.

Malik Saeed Ijaz and Muhammad Sharif Bhatti for the Complainant.

YLR 2022 LAHORE HIGH COURT LAHORE 1284 #

2022 Y L R 1284

[Lahore]

Before Asim Hafeez, J

MUHAMMAD AMIN and 2 others---Petitioners

Versus

MUHAMMAD RAFIQUE through L.Rs.---Respondent

Civil Revision No. 1795 of 2011, decided on 31st December, 2021.

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

----S. 42--- Mutation--- Suit for declaration filed by respondent claiming that land was provided on lease but petitioners fraudulently started claiming ownership on pretext of alleged oral sale in consideration of certain amount---Petitioners contested the suit alleging that respondent sold the land and received/acknowledged the consideration but unlawfully leased land of his sisters through written lease agreement and that petitioner paid the sisters as mediation which prompted respondent to challenge the sale---Suit was dismissed by Trial Court but the same was decreed by the Appellate Court---Petitioner contended that fraud was alleged in plaint against Revenue Officer but he was not made party to the plaint; that suit was decreed solely on the ground that provisions of S. 42 of the Land Revenue Act, 1967, were not complied with; that attesting witnesses identified as Patidars and qualified as village-respectables had identified the respondent; that any irregularity in compliance of S. 42 would not render transaction void; that attesting witnesses appeared and endorsed oral sale and stated that parties were known to them; that such statement of attesting witnesses was not cross examined; that Patwari Halqa/revenue officer appeared and proved the factum of recording/ sanctioning of impugned mutations; that possession of the petitioner was an admitted fact; that respondent alleged coronary ailment as pretext for avoiding lawfully conducted sale transaction but failed to establish the fact alleged---Petitioner referred to the exhibits, showing hospital visits / medical treatment, to substantiate failure on the part of the petitioner to prove plea of alleged ailment--- Validity--- Written statement was silent regarding the alleged oral sale---No details of persons/ witnesses privy to alleged transaction were provided---No convincing evidence was led by the petitioners to prove delivery of possession pursuant to alleged transaction of oral sale---Written statement was silent---Copies of register Roznamcha Waqiati depicted that possession was delivered, but no evidence led to prove the same---Delivery of possession without receipt of consideration was not appealing to reason---Patwari Halqa admitted that signatures/thumb impression of respondent and the petitioners were not on Roznamcha Waqiati---No mention that the acquirer of alleged right/petitioner was even present before Patwari Halqa, when allegedly factum of oral sale was recorded---One of the attesting witnesses of the mutation had admitted that land was leased to the petitioners by respondent---Petitioners failed to prove that possession was delivered pursuant to oral sale---Patwari Halqa and Revenue Officer alleged that payment of consideration was not made before them---Place of payment of consideration amount was not mentioned in the written statement---Separate considerations for each mutation as mentioned in Roznamcha Waqiati were not disclosed in written statement---Witnesses differed in their statements regarding consideration, place of alleged sale and witnesses/ purchasers present at the time of alleged sale/mutation---Earlier statements as referred to in the impugned mutations could not be proved---Copy of Part-Patwar did not contain order of revenue officer---Discrepancy as to reflection of attendance of parties in Part-Patwar and Part-Sarkar remained irreconciled and substantially affected the credence of alleged transaction---Witnesses and Patwari Halqa had not even pleaded their status as Patidars---No compelling evidence was available to believe that respondent was present and properly identified for the purposes of meeting statutory requirements---Petitioners failed to prove alleged oral transaction, payment of consideration, execution of impugned mutations--- Factum of possession under arrangement of oral sale was deficient / unconvincing---Revision petition was dismissed accordingly.

Muhammad Ishaq and 2 others v. Ghafoor Khan and another 2000 SCMR 519 and Sikandar Hayat and another v. Saughran Bibi and 6 others 2020 SCMR 214 distinguished.

(b) Punjab Land Revenue Act (XVII of 1967)---

----S. 42---Mutation by itself does not create/destroy an existing right but mere reflection of the revenue record/ authenticity/validity thereof had to be essentially ascertained qua the underlying transaction---Mutation merely recorded transfer, alleged to have taken place, which per se had no evidentiary value.

Mst. Kalsoom Begum v. Rizwan Shah and others 2020 SCMR 2029 and Member Board of Revenue/Chief Settlement Commissioner, Lahore and 2 others v. Mst. Sajida Parveen and others 2010 SCMR 1942 ref.

----Ss. 42 & 52---Mutation---Presumption of truth---Scope---Party was required to prove the underlying transaction---No refuge could be taken behind impugned mutations on the premise of presumption of correctness, if a party failed to prove it.

Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and others PLD 2003 SC 849; Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688 and Muhammad Iqbal and another v. Mukhtar Ahmad through L.Rs 2008 SCMR 855 rel.

Arshad Malik Awan and Mohsin Hanif Chaudhary for Petitioners.

Malik Abdul Wahid for Respondent.

YLR 2022 LAHORE HIGH COURT LAHORE 1328 #

2022 Y L R 1328

[Lahore]

Before Ahmad Nadeem Arshad, J

ABDUL QAYYUM and others---Petitioners

Versus

GHAZALA ISMAIL and others---Respondents

Civil Revision No. 2891 of 2014, heard on 24th February, 2022.

Punjab Partition of Immovable Property Act, 2012 (IV of 2013)---

----S. 4---Suit for partition of immovable property---Scope---Plaintiffs instituted a suit for possession through partition along with permanent injunction against the defendants with the contention that suit land was owned by their father---Validity---Mutation of suit land revealed that widow of deceased was owner of 1/8 share, two daughters of deceased (plaintiffs) were owners of 2/3 share and uncle of deceased was owner of 5/24 share being legal heirs of deceased---Uncle of deceased had inherited from the legacy because the original owner had died without any male issue---Said document had remained un-rebutted and fully established the stance of plaintiffs---Defendants were legal heirs of the uncle of deceased---Copy of mutation and jamabandi had established on record that the plaintiffs were owners of the suit land---Courts below had rightly passed the preliminary decree in favour of plaintiffs---Findings of courts below on question of facts and law having based upon proper appreciation of oral as well as documentary evidence produced in the suit were not liable to be reviewed or substituted by the High Court while exercising jurisdiction under S. 115 of C.P.C.---Civil revision was dismissed, in circumstances.

Syed Husnain Naqvi and others v. Mst. Begum Zakara Chatha through LRs and others 2015 SCMR 1081; Noor Muhammad and others v. Mst. Azmat-e-Bibi 2012 SCMR 1373; Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700; Ghulam Muhammad and 3 others v. Ghulam Ali 2004 SCMR 1001; Abdul Mateen and others v. Mustakhia 2006 SCMR 50 and Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) and another 2008 SCMR 428 ref.

Muhammad Sharif Chohan and Muhammad Usman Gondal for Petitioners.

Ghulam Hussain Mian for Respondents.

YLR 2022 LAHORE HIGH COURT LAHORE 1345 #

2022 Y L R 1345

[Lahore]

Before Sadaqat Ali Khan and Shehram Sarwar Ch., JJ

MUHAMMAD ASLAM and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 83917, 83916 and Murder Reference No. 477 of 2017, heard on 9th March, 2021.

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

----Ss. 302, 324, 337-A(i), 337-A(iv), 337-A(vi), 337-D, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, Shajjah-i-munaqqilah, causing shajjah-i-damighah, jaifah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused party while armed with deadly weapons made indiscriminate firing upon the complainant, due to which nephew of complainant died while his brother was seriously injured---Ocular account of the incident had been furnished by the complainant and injured witness---Both the said eye-witnesses stated in their statements regarding roles of the accused that accused made fire shot with Kalashnikov which hit on the left side of abdomen of injured witness---Second fire shot made by him hit on the right cheek of deceased---Co-accused made fire shot of Kalashnikov which hit deceased on his back---Other co-accused persons had also been attributed firearm injuries on the persons of deceased and injured, who had been acquitted by the trial court by disbelieving evidence of both the said eye-witnesses--- Complainant/State had not filed any appeal against their acquittal---Same evidence could not be believed to the extent of the accused persons in absence of independent corroborative piece of evidence which was conspicuously missing in the present case---Motive was not attributed to the accused rather was attributed to co-accused who had died---Recovery of Kalashnikovs on pointing out of the accused persons in presence of negative report of Forensic Science Agency was not only inconsequential but also drew adverse inference--- Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

Shahbaz v. The State 2016 SCMR 1763 rel.

(b) Criminal trial---

----Benefit of doubt---Principle---If there was circumstance which created reasonable doubt in the prudent mind about the guilt of the accused, then he would be entitled to its benefit not as a matter of grace and concession, but as of right.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Malik Matee Ullah for Appellants.

Zafar Abbas Khan for the Complainant.

Munir Ahmad Sial, D.P.G. for the State.

YLR 2022 LAHORE HIGH COURT LAHORE 1357 #

2022 Y L R 1357

[Lahore]

Before Muhammad Tariq Nadeem, J

ZAFAR IQBAL---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.220325 and Criminal Revision No.219868 of 2018, decided on 13th September, 2021.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay of one hour and fifty five minutes in lodging the FIR---Scope---Accused was charged for committing murder of the wife of the complainant by firing---Record showed that the occurrence had taken place at 07.15 pm, whereas the matter was reported to the police on the same day at 09.10 pm within one hour and fifty five minutes of the occurrence---Matter was reported to the police promptly and there was hardly any chance of consultations and deliberations in the intervening period---In the promptly lodged FIR, the name of the accused with his role of causing pistol shot on the neck of the wife of the complainant with the intention to murder her had been mentioned---Circumstances established that the prosecution had proved its case against the accused through confidence inspiring ocular account corroborated by medical evidence---Appeal against conviction was dismissed accordingly.

Abdul Wasay and others v. The State and others 2021 SCMR 1059 and Muhammad Hayat and another v. The State 2021 SCMR 92 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay of six hours in conducting post-mortem examination on the dead body of the deceased---Scope---Accused was charged for committing murder of the wife of the complainant by firing---Allegedly, there was delay of six hours in conducting post-mortem examination on the dead body of the deceased---Said contention of defence had no legal worth because a fragile creature lost her life---Occurrence took place in far-flung area and also just before sunset, therefore, time had been consumed in arranging and shifting the dead body to the hospital---Circumstances established that the prosecution had proved its case

against the accused through confidence inspiring ocular account corroborated by medical evidence---Appeal against conviction was dismissed accordingly.

Muhammad Asif and another v. Mehboob Alam and others 2020 SCMR 837 rel.

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular account---Scope---Accused was charged for committing murder of the wife of the complainant by firing---Ocular account had been furnished by husband and brother of the deceased respectively---Said witnesses gave specific reasons for their presence at the place of occurrence, as according to the prosecution story occurrence took place outside the house of the complainant---Presence of the said witnesses at the place of occurrence was neither unnatural nor improbable because they were closely related to the deceased---Despite that they were seriously cross-examined regarding the incident, they remained consistent throughout on each and every material point and their credibility could not be shattered by the defence---Evidence of said witnesses was trustworthy and confidence inspiring and could not be discarded merely on the basis of their relationship with the deceased---Said witnesses had no reason to let off the real culprits and involved the accused in the case, even otherwise substitution was rare a phenomenon---Circumstances established that the prosecution had proved its case against the accused through confidence inspiring ocular account corroborated by medical evidence---Appeal against conviction was dismissed accordingly.

Sheraz Khan v. The State 2010 SCMR 1772 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Related and interested witnesses---Scope---Accused was charged for committing murder of the wife of the complainant by firing---Defence objected that the ocular account in the case had been furnished by related and interested witnesses---Interested witness was one who was interested in the conviction of an accused for some ulterior motive, but in the present case, the defence could not bring on record any ulterior motive of the complainant or witnesses to falsely implicate the accused---Circumstances established that the prosecution had proved its case against the accused through confidence inspiring ocular account corroborated by medical evidence---Appeal against conviction was dismissed accordingly.

Muhammad Aslam v. The State 2012 SCMR 593; Abdul Rauf v. The State and another 2003 SCMR 522 and Zakir Hussain v. The State 2008 SCMR 222 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Medical evidence---Scope---Accused was charged for committing murder of the wife of the complainant by firing---Record showed that the medical evidence was in complete harmony with the ocular testimony and no conflict could be pointed out to create dent in the prosecution case as firearm injury on the person of the deceased was reflected in her post-mortem report, which ultimately became the cause of her unnatural death as opined by Medical Officer---Firearm injury observed by the Medical Officer on the person of the deceased was specifically attributed by the eye-witnesses to the accused---Ocular evidence about the kind of weapon used during the occurrence, time of incident and locale of injury as narrated by the eye-witnesses had also fully tallied with medical evidence---Medical Officer was also subjected to lengthy cross-examination but nothing beneficial to the accused could be extracted from her---Circumstances established that the prosecution had proved its case

against the accused through confidence inspiring ocular account corroborated by medical evidence---Appeal against conviction was dismissed accordingly.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Night time occurrence---Source of light---Scope---Accused was charged for committing murder of the wife of the complainant by firing---Occurrence took place at 07.15 pm and in the month of June the darkness had not spread---Even otherwise, the Investigating Officer had shown the availability of electric bulb in courtyard of the house and the alleged occurrence had taken place on the main gate of the house, therefore, the availability of electric bulb was quite natural---Said piece of evidence was not helpful to the accused---Circumstances established that the prosecution had proved its case against the accused through confidence inspiring ocular account corroborated by medical evidence---Appeal against conviction was dismissed accordingly.

Muhammad Yaqoob v. The State 2021 SCMR 1387 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of blood stained clothes and earth---Scope---Accused was charged for committing murder of the wife of the complainant by firing---Record showed that blood stained last worn clothes of the deceased and blood stained earth were taken into possession by the Investigating Officer of the case and thereafter sent to Forensic Science Laboratory---Forensic Serology Analyst Report affirmed that it was stained with human blood, which proved that the deceased died at the place as alleged by the prosecution--- Circumstances established that the prosecution had proved its case against the accused through confidence inspiring ocular account corroborated by medical evidence---Appeal against conviction was dismissed accordingly.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence from accused and crime empties--- Reliance--- Scope--- Accused was charged for committing murder of the wife of the complainant by firing---Record showed that crime weapon was recovered from the accused---During the spot inspection two crime empties of pistol 30-bore were collected by the Investigating Officer---Said empties were sent to the Forensic Science Laboratory but the report of Forensic Science Laboratory depicted that the empties so collected from the spot were not found to have been fired from the pistol recovered at the instance of the accused---Recovery of alleged pistol from the accused had been rendered inconsequential---Circumstances established that the prosecution had proved its case against the accused through confidence inspiring ocular account corroborated by medical evidence---Appeal against conviction was dismissed accordingly.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive proved---Scope---Accused was charged for committing murder of the wife of the complainant by firing---Motive behind the occurrence was that deceased married her daughter with a witness to the infuriation of the accused---According to the complainant the accused was interested to take rishta of his daughter for his brother but they refused because he was an addict person---Prosecution had failed to prove the motive part through any evidence.

(j) Criminal trial---

Qaddan and others v. The State 2017 SCMR 148; Qurban Hussain v. The State 2017 SCMR 880 and Haq Nawaz v. The State 2018 SCMR 21 rel.

Zafar Iqbal Khan for Appellant.

Muhammad Naveed Umar Bhatti, D.P.G. for the State.

Muhammad Ashraf Sagoo for the Complainant.

YLR 2022 LAHORE HIGH COURT LAHORE 1373 #

2022 Y L R 1373

[Lahore]

Before Ch. Muhammad Iqbal, J

ASHFAQ AHMAD and others---Appellants

Versus

Mst. KHURSHID BEGUM---Respondent

R.S.A. No.204 of 2014, heard on 25th February, 2020.

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss. 13 & 14---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Talbs, performance of---Source of information, disclosure of---Suit for possession through pre-emption filed by respondent/ pre-emptor was decreed concurrently---Appellants contended that no notice of Talb-i-Ishhad ever received by them and that they were permanent residents of the UK but no notice was ever received on the given address---Validity---Pre-emptor stated in her plaint that, she was sitting along with her brother in parley/bethak of his house, she was informed by someone regarding the transaction---Both the witnesses appeared and got their statements recorded---One of the witnesses stated that he was special attorney of the plaintiff and produced special power of attorney---Respondent did not appear to substantiate her stance---Pre-emptor had to appear herself to prove her personal pre-emptory right---Witness recorded his statement as special power of attorney but not as witness---Other witness did not disclose the source of information---Pre-emptor had failed to prove the performance of Talb-i-Muwathibat--- Source of information of the sale must necessarily be pleaded in the plaint, but the same was not done by the pre-emptor which was fatal---Counsel who wrote notice of Talb-i-Ishhad was not produced---Court legally presumed that if the said witnesses had been produced in evidence, they would have deposed against the petitioner---When requirement of Talb-i-Muwathibat had not been fulfilled then there was no need to see the performance of Talb-i-Ishhad---Appellant was permanently residing in the UK and no notice was ever issued/ served to him at his address in the UK which tantamount to non-performance of Talb-i-Ishhad---Appeal was allowed accordingly.

Dilshad Begum v. Mst. Nisar Akhtar 2012 SCMR 1106; Nawab Din through L.Rs. v. Faqir Sain 2007 SCMR 401; Abdul Qayyum v. Muhammad Sadiq 2007 SCMR 957; Muhammad Ayub v. Mehr Gul through next friend Lal Khan PLD 2012 Pesh. 112; Subhanuddin and others v. Pir Ghulam PLD 2015 SC 69; Muhammad Anwar v. Safeer Ahmed and 5 others 2017 SCMR 404; Sughran Bibi v. Mst. Aziz Begum and 4 others 1996 SCMR 137; Muhammad Uris v. Government of Sindh through Secretary Revenue Department Board of Revenue, Hyderabad and 2 others 1998 CLC 1359; Mst. Mohsina Saeed Tauni v. Muhammad Asif and others PLD 2005 Kar. 585; Mian Muhammad Amin and another v. Mst. Khursheed Begum alias Naseem Begum through L.Rs. PLD 2006 Lah. 371; Land Acquisition Collector and another v. Mst. Iqbal Begum through L.Rs. 2011 CLC 1342 and Naveed Akram and others v. Muhammad Anwar 2019 SCMR 1095 rel.

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

----S. 100---Second appeal---Jurisdiction of Court---Concurrent finding---Scope---No sanctity is attached to concurrent findings of the lower Courts suffering from perversity, misreading and non-reading of evidence as well as being against the law.

Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others 2016 SCMR 24 rel.

Ch. Muhammad Zubair Rafique Warraich for Appellants.

Khadim Hussain Qaisar for Appellant No.3.

Mian Zulfiqar Ali, Muhammad Usman Gondal, Muhammad Ali Yousaf and Rao Qasim Ali Khan for Respondent.

YLR 2022 LAHORE HIGH COURT LAHORE 1403 #

2022 Y L R 1403

[Lahore (Multan Bench)]

Before Sadaqat Ali Khan and Shehram Sarwar Ch., JJ

HASSAN JAVED and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 852-ATA, 713-ATA, 888-ATA, 931-ATA and Capital Sentence Reference No.4 of 2016, decided on 8th September, 2021.

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

----Ss. 302, 365-A, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abducting for extorting property, valuable security etc., rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Delay of about three days in lodging the FIR---Effect---Accused were charged for kidnapping the son of complainant for extorting money, but committing his murder---Contents of FIR revealed that, son of complainant went out of the house on 18.01.2015 and did not turn up---Complainant received phone call of some unknown person, who allegedly demanded ransom amount from the complainant for the release of her son---Matter was reported to the police about three days after missing of the child and two days having received phone call by the complainant---Absolutely no plausible or convincing reason for the said delay in reporting the matter to the police---Complainant rather admitted in her cross-examination that when she received the call, she never approached the police station and kept on waiting---After three days, complainant went to police station for registration of case, which casted serious doubt about the veracity of prosecution story---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Mehmood Ahmed and three others v. The State and another 1995 SCMR 127 rel.

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

----Ss. 302, 365-A, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abducting for extorting property, valuable security etc., rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused were charged for kidnapping the son of complainant for extorting money, but committing his murder---Admittedly, there was no direct evidence against the accused qua kidnapping or killing of deceased child---Role played by the accused persons in the incident in issue had never mentioned in the FIR or disclosed before the Trial Court through any solid or convincing evidence---Prosecution had never disclosed or alleged in the FIR as to under what circumstances the deceased had been done to death---Dead body of deceased was found lying in a khaal and case under S. 302, P.P.C., was got registered on the statement of a witness against unknown accused---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

----Ss. 302, 365-A, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abducting for extorting property, valuable security etc., rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Last seen evidence---Scope---Accused were charged for kidnapping the son of complainant for extorting money, but committing his murder---Evidence of last seen was furnished before the Trial Court by two witnesses---Story narrated by both the witnesses of last seen appeared to be improbable because the complainant as well as accused persons were already known to those witnesses---If said witnesses had seen minor son of complainant in the company of accused persons along with unknown person(s), then as to why they did not ask the reason from the accused persons for taking the minor---Even witnesses told story of last seen to the complainant after the registration of case---Conduct displayed by the said witnesses was nothing but unusual detracting from the veracity of his statement---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

(d) Criminal trial---

----Last seen evidence---Scope---Last seen evidence is a weak type of evidence unless corroborated with some other piece of evidence.

Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 and Muhammad Abid v. The State and another PLD 2018 SC 813 rel.

(e) Criminal trial---

----Extra-judicial confession---Scope---Extra-judicial confession had never been considered sufficient for recording conviction on a capital charge unless it was strongly corroborated by tangible evidence coming from unimpeachable source.

Tahir Javed v. The State 2009 SCMR 166 rel.

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

----Ss. 302, 365-A, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abducting for extorting property, valuable security etc., rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Extra-judicial confession---Accused were charged for kidnapping the son of complainant for extorting money, but committing his murder---Witness had stated that the accused confessed his guilt about the commission of crime---No occasion or reason for the accused to make such confession before that witness because he was a cultivator by profession and did not enjoy any social status/authority prompting the accused to make such a confession before him---Present was not the case of that witness before the Trial Court that they along with his son tried to apprehend the accused at the time of his extra-judicial confession, who was not armed with any weapon---Even otherwise, said witness neither informed the police nor anybody else---Evidence of extra-judicial confession was not worthy of reliance---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 365-A, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art.22---Qatl-i-amd, kidnapping or abducting for extorting property, valuable security etc., rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Identification parade---Accused were charged for kidnapping the son of complainant for extorting money, but committing his murder---Allegedly, the prosecution had maintained that accused had correctly been identified by two witnesses, during test identification parade conducted and supervised by a Special Judicial Magistrate---Eye-witnesses who allegedly picked up the accused during the identification parade had not mentioned the role of the accused, as admitted by the Judicial Magistrate during his cross-examina-tion---Even in the proceedings of identification parade, the witnesses had not assigned any specific role to the accused and it was simply mentioned therein that witnesses identified the accused---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127 rel.

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

----Ss. 302, 365-A, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abducting for extorting property, valuable security etc., rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Recovery of mobile from the possession of accused---Reliance---Scope---Accused were charged for kidnapping the son of complainant for extorting money, but committing his murder---Prosecution had claimed that at the time of arrest of accused, phone containing SIM was recovered from his possession---Complainant allegedly received call from that number for payment of ransom amount---Said recovery was not much helpful for the prosecution for the reasons that no voice transcript was obtained from the concerned department to prove that assertion of the prosecution---Even the Investigating Officer did not obtain any proof that the said phone was owned by said accused or the SIM was got issued in his name---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 365-A, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abducting for extorting property, valuable security etc., rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence---Reliance---Scope---Accused were charged for kidnapping the son of complainant for extorting money, but committing his murder---Toka, weapon of offence, was allegedly recovered at the instance of accused--- Said recovery was inconsequential for the reason that the occurrence took place in the month of January, toka was got recovered by the said accused in last day of February which was received in the office of Forensic Science Agency on 13.03.2015, therefore, it was unlikely that the blood on the toka would not disintegrate during the said period---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances .

Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 rel.

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

----Ss. 302, 365-A, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abducting for extorting property, valuable security etc., rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Recovery of gold ring, chain locket and motorcycle at the instance of co-accused---Reliance---Scope---Accused were charged for kidnapping the son of complainant for extorting money, but committing his murder---Gold ring was recovered at the instance of co-accused and chain locket at the instance of other co-accused---Said recoveries were of no avail to the prosecution for the simple reason that there was no mention of these articles in the FIR---Recovery of motorcycle at the instance of co-accused was also inconsequential as no proof regarding its ownership was brought on record---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

Muhammad Saleem v. Shabbir Ahmad and others 2016 SCMR 1605 rel.

(k) 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.

M.A. Hayat Haraj, Kh. Qaiser Butt, Mian Babar Saleem, Muhammad Irfan Arabi and Habib Ullah Shakir and Malik Ejaz Hussain for Appellants.

Syed Nadeem Haider Rizvi, DDPP along with Latif, Sub-Inspector for the State.

Zia-ur-Rehman Randhawa for the Complainant.

YLR 2022 LAHORE HIGH COURT LAHORE 1424 #

2022 Y L R 1424

[Lahore]

Before Farooq Haider, J

SHOAIB ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 32864-B of 2021, decided on 8th September, 2021.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S. 406---Criminal breach of trust---Pre-arrest bail, grant of---Civil dispute---Scope---Accused sought pre-arrest bail in an FIR registered under S.406, P.P.C.---Allegation levelled in the FIR was that the complainant had paid certain amount to the accused and his co-accused persons as trust for the purpose of purchasing plots but the same was not returned---Held; the amount was paid as advance for purchasing plots and when the plots were not given to the complainant then the FIR was got registered, therefore, prima facie this was a civil transaction and not the case of "criminal breach of trust" defined under S. 405, P.P.C. and punishable under S. 406, P.P.C.---Complainant after joining hands with the police had tried to convert a civil transaction into a criminal one through registration of the case, which fact itself reflected mala fide intention on the part of the prosecution---Reasonable grounds were not available on record to connect the accused with the commission of alleged offence---Insistence of Investigating Officer for arrest of the accused in the case showed mala fide intention on the part of the prosecution---Pre-arrest bail was allowed, in circumstances.

Shahzada Qaisar Arfat alias Qaiser v. The State and another PLD 2021 SC 708 rel.

Sardar Muhammad Usman Bhutta for Petitioner.

Ch. Muhammad Mustafa, Deputy Prosecutor General along with Zafar Ullah, S.I. and Liaqat Ali, A.S.I. with record.

YLR 2022 LAHORE HIGH COURT LAHORE 1458 #

2022 Y L R 1458

[Lahore (Multan Bench)]

Before Jawad Hassan, J

Mst ASIA SHEHZADI---Petitioner

Versus

GOVERNMENT OF PUNJAB and 5 others---Respondents

Writ Petition No. 11578 of 2016, decided on 13th April, 2017.

Pakistan Citizenship Act (II of 1951)---

----S. 17---Constitution of Pakistan, Art. 199---Certificate of domicile---Temporary residence--- Permanent residence--- Scope--- Petitioner assailed cancellation of her domicile certificate, which was cancelled on the ground that she was not resident of the Chak (village) rather was residing in another district---Validity---Nexus of the petitioner was not denied with the Chak rather it was only stated that she was living in another district---Documents attached by the petitioner with the petition proved that she was permanent resident of the Chak---(Computerized National Identity Card) (CNIC) of the petitioner and her other blood relatives showed her permanent address as the Chak---No doubt that temporary address was also mentioned on the CNICs and other documents but it could not be presumed that they were living there permanently---Brother of the petitioner who was also denied the issuance of domicile certificate for the reason that the petitioner's domicile was cancelled had also filed a constitutional petition---Documents produced by petitioner's brother showed that his permanent address was of the Chak and he was residing with his mother, brothers and sisters in the Chak, he also had agricultural land in the Chak---Petitioner was living along with her mother, brothers and sisters and their permanent address was of the Chak, therefore, that created right in favour of the petitioners to be entitled to get domicile certificate of the Chak---Constitutional petitions were allowed, in circumstances.

Afsar Khan v. Tribunal F.C.R. and others 2005 Cr.LJ 886 and Ziaullah Khan v. District Magistrate District Nawabshah and 3 others 2000 CLC 406 rel.

Malik Ijaz Hussain Mahay for Petitioner.

Rana Muhammad Hussain, Assistant Advocate-General for Respondents.

YLR 2022 LAHORE HIGH COURT LAHORE 1474 #

2022 Y L R 1474

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

MUHAMMAD DAUD and others---Petitioners

Versus

PROVINCE OF PUNJAB and others---Respondents

Writ Petition No. 147 of 2022, decided on 7th February, 2022.

(a) Constitution of Pakistan---

----Art. 199---Elections Act (XXXIII of 2017), Ss. 17, 19 & 20---Constitutional petition--- Commission to delimit constituencies--- Delimitation of constituencies---Principles of delimitation--Maintainability---Factual controversy---Scope---Petitioners challenged the extension of territorial limits of the Cantonment by the Election Commission of Pakistan (ECP)---Validity---Power of de-limitation of constituencies based on geographical compactness and equal distribution of population squarely falls within the exclusive domain of the ECP---Under Chapter-III of the Elections Act, 2017, the ECP has the mandate to delimit constituencies---As per the provisions contained in S. 17 read with S. 19 of the Elections Act, 2017, the ECP can also exercise the powers of delimitation of territorial constituencies by dividing each Province into as many separate territorial constituencies as the number of general seats allocated to that Province as specified in Art. 51 of the Constitution---Moreover, the principles of delimitation are given in S. 20 of the Elections Act, 2017---Petitioners had raised disputed questions of facts in the case and factual controversy could not be resolved by the High Court while exercising jurisdiction under Art. 199 of the Constitution---Election Commission of Pakistan had not exceeded its powers whilst issuing the election schedule strictly in accordance with relevant provisions of the applicable law---Writ petition being not maintainable was dismissed.

Mian Khuda Bakhsh v. Government of Punjab through Secretary Local Government and Community Development Punjab, Lahore and 7 others 2016 YLR Note 75; Gulzar Ahmed Qureshi v. Federation of Pakistan through Secretary, Ministry of Justice, Islamabad and others 1999 MLD 2815 and Abdul Hadi v. Government of Balochistan, Local Government Rural Development through Secretary and 2 others 2014 CLC 1450 ref.

Ghulam Mustafa and 5 others v. Commissioner/Delimitation Authority, D. G. Khan Division, Dera Ghazi Khan and 5 others 2014 YLR 1583 and Syed Maqbool Hussain Shah v. Punjab Local Councils Authority and others 1999 MLD 2813 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Extraordinary jurisdiction---Scope---Jurisdiction conferred on High Courts under Art. 199 of the Constitution is an extraordinary relief and the same has to be exercised in aid of justice and not to interfere in jurisdictions of other statutory forums unless it is shown that order, action or inaction is in violation of any provision of law or without lawful authority or jurisdiction---In a writ jurisdiction, High Court can only take cognizance when the governmental authority/forum concerned has acted in excess of the powers vested with him/her/it under the relevant law and in absence of the same, High Court cannot embark upon factual inquiry on such issues.

----Art. 199---Constitutional jurisdiction---Factual controversy---Scope---High Court is not to resolve the disputed questions of fact in writ jurisdiction.

Muhammad Asif Chaudhary, Advocate Supreme Court for the Petitioners along with Raja Shahbaz Ahmed Abbasi.

Mujeeb-ur-Rehman Kiayani, Additional Advocate General Punjab for Respondent No.1.

Malik Ahtesham Saleem, Assistant Attorney General for Respondents Nos. 2, 3 and 6 to 8.

Arif Mehmood Butt for Respondent No. 4.

YLR 2022 LAHORE HIGH COURT LAHORE 1482 #

2022 Y L R 1482

[Lahore]

Before Rasaal Hasan Syed, J

KHUDA BAKHSH---Petitioner

Versus

PROVINCE OF PUNJAB through District Officer and another---Respondents

Civil Revision No. 2489 of 2012, decided on 21st December, 2021.

Displaced Persons (Land Settle-ment) Act (XLVII of 1958)---

----Ss. 10 & 11--- Specific Relief Act (I of 1877), S. 42---Civil Procedure Code (V of 1908), O.XLI, R.27--- Suit for declaration---Cancellation of allotment--- Additional documents, production of--- Petitioner/plaintiff claimed a declaration to the effect that he was owner in possession of land as a purchaser vide mutation of year 1961 and also intended to deposit purchase price at the rate prevalent in that year---Suit and appeal were dismissed by Trial Court and Lower Appellate Court respectively---Petitioner/ plaintiff sought permission to file addition documents---Validity---Allotment of land was cancelled as the same was obtained by fraud and subsequent allotment by vendees was also cancelled---Petitioner/plaintiff had no right to claim to be bona fide purchasers---High Court declined to interfere in concurrent findings of facts recorded by two

Courts below as there was no misreading or non-reading of evidence nor the same was suffering from any error of law---Decisions in civil suits between other parties would not serve any purpose as the same were decided on their own facts and could not be applied to the case of petitioner / plaintiff who failed to prove his own suit by any cogent or admissible evidence nor could cross the hurdle of limitation--- Revision was dismissed, in circumstances.

Talib Hussain and others v. Member, Board of Revenue and others 2003 SCMR 549 rel.

Usman Karimuddin for Petitioner.

Syed Shadaab Hussain Jaffari, Additional Advocate General for Respondents.

YLR 2022 LAHORE HIGH COURT LAHORE 1536 #

2022 Y L R 1536

[Lahore]

Before Ch. Muhammad Iqbal, J

SARDARAN BIBI and others---Petitioners

Versus

REHMA and others---Respondents

Civil Revision No.1786 of 2012, heard on 11th November, 2021.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11 & O. XXIII, R. 1---Suit for declaration and permanent injunction--- Rejection of plaint---Institution of second suit during pendency of first suit---Petitioner filed second suit during pendency of first suit and then withdrew the first suit by making statement that he had filed another suit--- Respondents filed application for rejection of plaint on ground of maintainability---Plaint was rejected by Trial Court on ground that second suit was barred under O. XXIII, R. 1, C.P.C.---Appellate Court dismissed appeal---Validity---Bar of O. XXIII, R. 1, C.P.C. would apply to a suit instituted after withdrawal/abandonment of previous suit---Where a suit is already pending before the institution of fresh/ new suit and previous suit is withdrawn , the provision of O. XXIII, R. 1, C.P.C. would not be applicable---Said law referred to permission to withdraw a suit with liberty to institute a fresh suit after the first had been withdrawn---Order XXIII, R. 1, C.P.C. could not be read so as to bar a suit which had already been instituted before the other suit had been abandoned or dismissed---Courts below illegally passed the impugned order and judgment against the record and misapplication of law which are not sustainable and liable to be set-aside---Revision petition was allowed accordingly and the suit was held to be deemed pending before Trial Court.

Mangi Lal and another v. Radha Mohan and another AIR 1930 Lahore 599(2); Haji Ashfaq Ahmad Khan and others v. Custodian of Evacuee Property, Pakistan and others PLD 1966 (W.P.) Kar. 597; The Commissioner of Income-Tax N.C.A. Circle, Karachi and another v. Haji Ashfaq Ahmad Khan and 10 others PLD 1973 SC 406; Abdullah and 8 others v. Bashiran Bibi and 4 others PLD 1981 Lah. 336; Irshad Ali v. Islamic Republic of Pakistan and 2 others 1981 CLC 111 and Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344 rel.

Malik Mubarik Ali for Petitioners.

Rai Sajid Ali Kharal for Respondents.

YLR 2022 LAHORE HIGH COURT LAHORE 1583 #

2022 Y L R 1583

[Lahore (Multan Bench)]

Before Asim Hafeez, J

Maj. (R) MUHAMMAD SIDDIQUE (deceased) through L.Rs.---Appellants

Versus

MUHAMMAD HAROON and 3 others---Respondents

Regular First Appeal No. 18 of 2021, decided on 24th December, 2020.

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

----O. XXXVII, Rr. 2 & 3---Negotiable Instruments Act (XXVI of 1881), S.118---Qanun-e-Shahadat (10 of 1984), Art. 2(4)---Summary suit on the basis of promissory note--- Execution of promissory note and receipt of consideration--- Proof--- Defendant categorically denied execution of the promissory note, accompanying receipt, his alleged signatures and receiving of consideration---Concealment of previous fact by the plaintiff---Effect---Statutory presumption attached with negotiable instrument---Scope---Held, that due to categorical denial by the appellant/ defendant, statutory presumptions, otherwise extended/claimed to the negotiable instrument, under the S. 118 of the Negotiable Instruments Act, 1881, in the present case, were of not much avail / significance--- Said presumption also stood damaged/exposed in wake of positive evidence led by the appellant, particularly establishing factum of an obvious withholding of disclosure of alleged promissory note, as in a previous suit for damages of the appellant having filed subsequent to the date of alleged execution of promissory note, respondent (defendant in said suit) had submitted written statement without mentioning existence of said promissory note---Such non-disclosure held substance while examining question of adequacy of proof of promissory note in question---Probability of its existence would certainly diminish, making it highly improbable for a prudent man to believe in its existence under the circumstances--- Even respondent's witness who purportedly issued a certificate confirming default of the appellant qua the amount claimed/ payable to respondent, affirmed that no information was disclosed with respect to promissory note in question---Preponderance of probability was against the plaintiff/respondent, hence claim on the basis of promissory note was not sustainable in law---Impugned judgment and decree suffered from gross illegalities and were unsustainable in wake of deficient evidence qua proof of execution of promissory note and underlying consideration---Appeal was allowed, in circumstances.

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

----O. XXXVII, Rr. 2 & 3---Negotiable Instruments Act (XXVI of 1881), S.118---Qanun-e-Shahadat (10 of 1984), Art. 2(4)---Summary suit on the basis of promissory note---Execution of promissory note and consideration---Proof---Defendant categorically denied the alleged liability, signatures/execution of the promissory note, accompanying receipt and receiving of consideration---Statutory presumption attached with negotiable instrument--- Scope---Held, that onus on the plaintiff/respondent was not discharged by merely producing the scribe and marginal witnesses of promissory-note/receipt, who clearly expressed lack of knowledge qua the alleged liability---Receipt exhibited by the respondent to show liability on the defendant/appellant read that cash amount was paid to the appellant as an alleged consideration of the promissory-note, however, the contentions in the plaint were contrary to the contents of the receipt, wherein in fact respondent had claimed some previously payable liability---Marginal witnesses of receipt failed to testify convincingly to prove transaction-in-question and alleged outstanding liability with respect to alleged supply of cotton yarn, hence presumption under S. 118 of Negotiable Instruments Act, 1881, could not be invoked---Preponderance of probability was against the plaintiff/respondent, hence claim on the basis of promissory note was not sustainable in law---Impugned judgment and decree suffered from gross illegalities and unsustainable in wake of deficient evidence qua proof of execution of promissory note and underlying consideration---Appeal was allowed, in circumstances.

Asif Ali and 6 others v. Saeed Muhammad 2009 CLD 1301 ref.

----O. XXXVII, Rr. 2 & 3---Negotiable Instruments Act (XXVI of 1881), S. 118---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Summary suit on the basis of promissory note---Execution of promissory note and consideration---Proof---Defendant categorically denied signatures, execution of the promissory note, accompanying receipt and consideration--- Statutory presumption attached with negotiable instrument---Scope---Held, that the plaintiff/respondent claimed in the plaint that obligation of the defendant/appellant accrued in the wake of agreement amongst the partners meaning thereby that the liability was against the firm in which behalf settlement/agreement was affected---Said agreement qua final settlement of account was not produced on record, which tantamount to withholding of best evidence in terms of Art. 129(g) of Qanun-e-Shahadat, 1984---One of the partners of firm as plaintiff's witness also failed to produce any such agreement (account reconciliation)---Another plaintiff's witness alleged, in the cross-examination, that he saw the accounts of the firm before issuing a certificate, but no such accounts were produced---Preponderance of probability was against the plaintiff/respondent, hence claim on the basis of promissory note was not sustainable in law---Impugned judgment and decree suffered from gross illegalities and was unsustainable in wake of deficient evidence qua proof of execution of promissory note and underlying consideration---Appeal was allowed, in circumstances.

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

----O. XXXVII, Rr. 2 & 3---Negotiable Instruments Act (XXVI of 1881), S. 118---Qanun-e-Shahadat (10 of 1984), Arts. 2(4) & 78---Summary suit on the basis of promissory note---Execution of promissory note and consideration---Proof---Defendant categorically denied signatures, execution of the promissory note, accompanying receipt and consideration---Opinion of handwriting expert---Scope---Held, that the plaintiff/ respondent failed to prove execution of promissory-note/consideration---No need to discuss the issue of effect and consequences of opinion of handwriting expert, when execution of the promissory note and consideration remained unproved making its non-existence highly probable---Preponderance of probability was against the plaintiff/respondent, hence claim on the basis of promissory note was not sustainable in law---Impugned judgment and decree suffered from gross illegalities and was unsustainable in wake of deficient evidence qua proof of execution of promissory note and underlying consideration---Appeal was allowed, in circumstances.

Muhammad Sulaman Bhatti for Appellants.

Tahir Mahmood for Respondents.

YLR 2022 LAHORE HIGH COURT LAHORE 1597 #

2022 Y L R 1597

[Lahore (Multan Bench)]

Before Shahid Bilal Hassan, J

ALLAH WASAI (deceased) through L.Rs. and others---Petitioners

Versus

KHUDA BUKHSH (deceased) and others---Respondents

Civil Revision No.964-D of 2003, heard on 18th May, 2021.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Cancellation of gift mutation---Scope---Plaintiffs/donees instituted two separate suits for declaration wherein they challenged cancellation of gift mutations by the Assistant Collector---Trial Court and Appellate Court concurrently decreed the suits---Validity---Record revealed that donor was incapable of getting his statement recorded and even he was unable to understand the events of alleged gift, entered in the revenue record, in favour of his sons/plaintiffs, by depriving his daughter---Basic ingredients for gift i.e. offer, acceptance and delivery of possession were not detailed in the plaint---Plaintiffs could not plead as to when, where and in whose presence the deceased had made an offer for gifting out the property, which was accepted in presence of such and such witnesses, where after possession was delivered to the plaintiffs---Assistant Collector had rightly cancelled the alleged gift mutations--- Possession of disputed property was with the plaintiffs under the donor, father of the parties and it was not in pursuance of the alleged gift---Revision petition was accepted and the impugned judgments and decrees were set aside, in circumstances.

Farhan Aslam and others v. Mst. Nuzba Shaheen and another 2021 SCMR 179 and Muhammad Sarwar v. Mumtaz Bibi and others 2020 SCMR 276 ref.

Atta Muhammad and others v. Mst. Munir Sultan (Deceased) through her L.Rs. and others 2021 SCMR 73 and Mst. Saadia v. Mst. Gul Bibi 2016 SCMR 662 rel.

Malik Muhammad Fayyaz Ul Haq Arain for Petitioner (in C.R. No.964-D of 2003).

Haji Muhammad Tariq Aziz Khokhar for Petitioner (in C.R. No.963-D of 2003).

Malik Javed Akhtar Wains for Respondents.

YLR 2022 LAHORE HIGH COURT LAHORE 1616 #

2022 Y L R 1616

[Lahore]

Before Safdar Saleem Shahid, J

FIAZ AHMAD and another---Petitioners

Versus

MUHAMMAD RIZWAN and 2 others---Respondents

Writ Petition No.134475 of 2018, heard on 27th May, 2021.

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

----S. 9--- Qanun-e-Shahadat (10 of 1984), Arts. 117 & 118---Punjab Land Revenue Act (XVII of 1967), S. 52---Suit for possession was filed by respondents claiming that they had possession of suit land since long; that their names were mentioned in revenue record; that prior suit of respondents for permanent injunction was disposed of on the statement of counsel for one of the petitioners that petitioners and others armed with weapons illegally/ forcibly occupied the suit land; that FIR was lodged against them---Suit was dismissed by Trial Court---Respondents' appeal was allowed by District Court---Petitioners contended that name of respondent was mistakenly mentioned in some previous revenue record; that entries of said record were corrected on application of petitioners; that petitioners were in possession of the suit land form the very beginning and the land under the possession of respondents was some other portion adjacent to suit land---Validity---Possession of respondents was clear from admission of one of the petitioners and his counsel in prior suit filed by the respondents that they would not dispossess the respondents without due course of law---Court document had authenticity in the eye of law---Name of respondents were appearing in the column of possession in last jamabandi---Procedure was not adopted while making entries in revenue record of rights---Revenue Officer was not produced as witness---Court could presume about the regularity of the official acts performed by the Revenue Officer and not that the same were performed correctly as well---Respondents had proved that they were dispossessed from the land without their consent---First Information Report was a vital document to prove the said claim---Constitutional petition was dismissed accordingly.

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

----S. 9---Suit for possession---Proof---Essentials---Claimant had to prove its possession; such possession must have been dispossessed; such dispossession must be from immoveable property without consent of person in possession, without due course of law; and suit was to be filed within six months of such dispossession.

----S. 52---Revenue entries---Proof---Presumption of correctness---Scope---Entries in revenue record were not foundation of title---Presumption of correctness was attached to entries in record of rights but such was a rebuttable presumption---In case of dispute, non-production of Revenue Officer who attested the mutation or any other witness testing the factum of transaction would certainly diminish the evidentiary value of the entries in the revenue record---Evidentiary value of entries in record of rights would depend on circumstances of each case---Party relying on admission recorded in the order of Revenue Officer about the identity of the maker or the contents of the statement attributed to him had to prove the same like any other fact in issue.

Muhammad Bakhsh v. Zia Ullah and others 1983 SCMR 988; Mst. Bibi Mukhtiar v. Mst. Amrezan and another PLD 1968 Pesh. 169 and Muhammad and others v. Sardul PLD 1965 Lah. 472 rel.

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

----Arts.117 & 118---Suit for possession---Revenue record--- Onus to prove---Scope---Onus lies on the person who wants to establish the genuineness of the transfer.

(e) Punjab Land Revenue Act (XVII of 1967)---

----S. 52---Revenue record---Presumption of correctness---Scope---Presumption can only be raised as to regularity in the form and procedure adopted in performance of official/judicial act, but it cannot be raised about the correctness of decision taken by the Revenue Officer.

Mst. Ghulam Sughran and others v. Sahibzada Ijaz Hussain and others PLD 1986 Lah. 194 rel.

Mian Ijaz Yousaf for Petitioners.

Sajjad Asghar for Respondents.

YLR 2022 LAHORE HIGH COURT LAHORE 1629 #

2022 Y L R 1629

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

Mst. NASEEM GULSHAN---Petitioner

Versus

GOVERNMENT OF PUNJAB through District Collector, Okara and others---Respondents

Civil Revision No. 51138 of 2021, decided on 1st December, 2021.

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

----O. XXIII, R. 1---Withdrawal of suit or abandonment of part of claim---Scope---Permission to withdraw suit can only be granted to remove a defect, which is apparent or formal and its presence in the suit may fail the same---Where the defect is latent and touches merits of the case, then permission to withdraw a suit on this score cannot be granted---Existence of sufficient grounds is condition precedent for allowing the plaintiff to institute a fresh suit.

Sardar Muhammad Kazim Ziauddin Durrani and others v. Sardar Muhammad Asim Fakhuruddin Durrani and others 2001 SCMR 148; Messrs Artisans Craftsmen, Rehabilitation Society and 2 others v. Mst. Asif Jahan Begum and 10 others 1990 MLD 1702; Khawaja Bashir Ahmed and Sons (Pvt.) Ltd., Multan v. Messrs MARTRADE Shipping and Transport, GmbH through Brokers / Local Agents and another 2015 MLD 1459; Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others PLD 2003 SC 979; Muhammad Yar (Deceased) through L.Rs. and others v. Muhammad Amin (Deceased) through L.Rs. and others 2013 SCMR 464; Muhammad Yousaf and others v. Nazeer Ahmed Khan (Deceased) through LRs and others 2021 SCMR 1775; Ghulam Rasool v. Government of Punjab through District Officer (Revenue), Sahiwal and 4 others 2016 MLD 1660 and The Fauji Foundation Charitable Trust through Major (Retd.) Ikram-ul-Haq v. Federal Land Commission through Chairman and 7 others 2020 YLR 2188 ref.

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

----O. XXIII, R. 1 & O. VII, R. 11---Withdrawal of suit or abandonment of part of claim---Rejection of plaint---Scope---Filing of application for withdrawal of the suit under O. XXIII, R. 1(2), C.P.C. to circumvent the bar imposed under O. VII, R. 11, CPC is itself defective and mala fide as well.

----O. XXIII, R. 1---Withdrawal of suit or abandonment of part of claim---Scope---Where plaintiff had neither pointed out any formal defect in the suit nor his application disclosed any justification for extending permission to withdraw the suit and file the fresh one on the subject matter, High Court observed that permission could not be granted.

Ismail v. Fida Ali PLD 1965 SC 634; Pehlwan and others v. Haji Muhammad Murad and others 2005 SCMR 1405; Sayedur Rahman Molla and another v. Abdur Rahman and others PLD 1961 Dacca 844 and Muhammad Dawood Khan v. Abdul Ghani and 2 others 2021 CLC 1766 distinguished.

Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others PLD 2003 SC 979; Muhammad Yar (Deceased) through L.Rs. and others v. Muhammad Amin (Deceased) through L.Rs. and others 2013 SCMR 464; Muhammad Yousaf and others v. Nazeer Ahmed Khan (Deceased) through LRs and others 2021 SCMR 1775; Ghulam Rasool v. Government of Punjab through District Officer (Revenue), Sahiwal and 4 others 2016 MLD 1660 and The Fauji Foundation Charitable Trust through Major (Retd.) Ikram-ul-Haq v. Federal Land Commission through Chairman and 7 others 2020 YLR 2188 ref.

Abdul Aziz Bhatti for Petitioner.

Barrister Ameer Abbas Ali Khan, A.A.G.

YLR 2022 LAHORE HIGH COURT LAHORE 1634 #

2022 Y L R 1634

[Lahore (Multan Bench)]

Before Ch. Muhammad Iqbal and Jawad Hassan, JJ

MUHAMMAD HUSSAIN and another---Appellants

Versus

PROVINCE OF PUNJAB through District Officer and others---Respondents

Regular First Appeal No. 167 of 2016, decided on 24th February, 2021.

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

----Ss. 4, 23, 17 & Preamble---Compensation, determination of---Commercial value of acquired land---Proof---Price of acquired land, for construction of housing society, was assessed as agricultural one---Contention of the appellants was that their acquired land was commercial in nature---Validity---Though attorney of the appellants deposed in his evidence that that the property-in-question was commercial in nature, however, he admitted in cross-examination that he did not take such stance before the Land Acquisition Collector or the Board of Revenue---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, etc.) to prove their stance that acquired land was commercial---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 (I of 1894), S.23 & Preamble---Compensation, determination of---Commercial value of 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 housing society, should be given to them at the commercial rate, whereas the price was wrongly assessed as of agricultural land---Validity---Appellants, apart from their attorney, also produced two witnesses but they deposed/admitted in the 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 the Art. 71 of Qanun-e-Shahadat, 1984 required that oral evidence shall be direct and such hearsay evidence was not admissible---Appeal dismissed.

Gulzar Ahmad and others v. Muhammad Anwar and others 2003 SCMR 1008 and Abdul Qayyum v. Muhammad Sadiq 2007 SCMR 957 ref.

----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 the 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 landowner was dismissed.

Mst. Hameeda Begum and others v. Mst. Irshad Begum and others 2007 SCMR 996; Federation of 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 Sohail Ashiq Shujra for Respondent No.2.

YLR 2022 LAHORE HIGH COURT LAHORE 1647 #

2022 Y L R 1647

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

AL ABBAS MINI TRAVEL SERVICE through Managing Partner and 2 others- -Petitioners

Versus

The GOVERNMENT OF PUNJAB through Secretary Transport Punjab and 10 others---Respondents

Writ Petition No. 1430 of 2021, decided on 3rd February, 2021.

Constitution of Pakistan---

----Art. 18---Specific Relief Act (I of 1877), S. 56(d)---Right of business, trade and profession---Wagon stand, shifting of---Petitioners were running "D-Class" wagon stand who were aggrieved of notification issued by authorities to remove the stand to General Bus Stand---Validity---Demand of shifting wagon stand of petitioners to General Bus Stand due to administrative issues relating to traffic flow in the city etc., was not contrary to right of petitioner under Art. 18 of the Constitution providing freedom of business, trade or profession---Authorities were not stopping petitioners to carry on their business as transporters but were only shifting premises for regulating same for smooth functioning in public interest---High Court declined to interfere in the demand of authorities for shifting wagon stand based on administrative control of situation---Interference could also not required to be made in view of provision of S.56(b) of Specific Relief Act, 1877---Constitutional petition was dismissed accordingly.

Dossani Travels Pvt. Ltd. and others v. Messrs Travel Shop (Pvt.) Ltd. and others PLD 2014 SC 1; Sahibzadi Mehrun Nisa and another v. Mst. Ghulam Sughran and another PLD 2016 SC 358 and Haji Zar Ali Khan, Proprietor v. Government of N.W.F.P. and 3 others PLD 2000 Pesh. 14 ref.

Tahir Mehmood for Petitioners.

Abdul Salam Alvi for Respondents Nos.4 to 6.

Haji M. Aslam Malik for Municipal Corporation, Multan.

YLR 2022 LAHORE HIGH COURT LAHORE 1660 #

2022 Y L R 1660

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

JAMIL AKHTAR KHAN and another---Petitioners

Versus

MUHAMMAD SALEEM SADIQ and others---Respondents

Writ Petition No. 66426 of 2020, heard on 10th March, 2021.

Civil Procedure Code (V of 1908)---

----O. III, R. 4---Appointment of pleader---Scope---Respondent filed suit for specific performance of agreements to sell against several defendants---Several defendants including petitioners engaged a counsel who duly filed his power of attorney---Suit was fixed for submission of written statement before Trial Court when one of the defendants (brother of petitioners) recorded statement apprising that he had engaged a new counsel and that the previously engaged counsel would not be his attorney---Previous counsel despite being superseded not only submitted joint conceding written statement on behalf of several defendants, except one, rather simultaneously made statement for acceptance of application for grant of temporary injunction---Trial Court adjourned the case for submission of written statement by the brother of petitioners---Petitioners tabled an application for cancellation of conceding written statement made by their counsel but the application was concurrently dismissed---Validity---Petitioners along with their brother had also engaged the new counsel---Haste in submitting written statement on the part of previous counsel spoke volumes on his conduct towards the proceedings of the suit---High Court observed that previous counsel should have at least omitted/ deleted the name of petitioners' brother, who had already withdrawn his power of attorney---Such conduct of the previous counsel lent support to the stance of petitioners that he, by using their signatures made available to him, had filed the written statement without their instructions--- Prompt filing of application qua discarding of the written statement on behalf of the petitioners was again a supporting factor and could not be summarily declined---Impugned orders were set aside and the Constitutional petition was allowed, in circumstances.

Rao Abid Mushtaq for Petitioners.

Mirza Aziz-ur-Rehman for Respondent No.1.

Muhammad Akram Khan and Kiran Akram Khan for Respondent No.4 through LRs.

Nasir Mahmud for Respondent No.8(b).

Anwaar Hussain Janjua and Daowd Ahmad Asif for respondent No.8(c&d).

Rao Abbas Adeel for Respondents Nos.17 to 19.

YLR 2022 LAHORE HIGH COURT LAHORE 1665 #

2022 Y L R 1665

[Lahore]

Before Mirza Viqas Rauf, J

Mst. PARVEEN AKHTAR and another---Petitioners

Versus

NOOR MUHAMMAD and 8 others---Respondents

Civil Revision No. 21651 of 2021, decided on 1st April, 2021.

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

----O. XXII, R. 4 & S. 12(2)---Procedure in case of death of one of several defendants or of sole defendant---Scope---Plaintiff filed suit for recovery of possession of a house---Trial Court dismissed the suit whereas Appellate Court decreed the same---Petitioners, daughters of one of the defendants, filed application under S.12(2), C.P.C. before the Appellate Court seeking an annulment of judgment and decree on the ground that their father had passed away during pendency of the appeal but the plaintiff despite having knowledge did not implead them in his place and, thus, the plaintiff had obtained the decree through misrepresentation---Appellate Court dismissed the application vide impugned order---Validity---Father of petitioners' was not only the defendant but he was also accompanied by other defendants who were closely related to him, thus, it was not only the duty of the plaintiff to bring in the notice of the court the alleged factum of his death but the defendants as well as their counsel were bound to apprise the court but they also remained mum to that effect, so no question of fraud and misrepresentation arose on the part of the plaintiff at all---Application under S.12(2) of C.P.C. was highly misconceived and ill founded, as the case of the petitioners even at the face of it did not come within the purview of S.12(2), C.P.C.---Petitioners had failed to point out any illegality or material irregularity in the impugned order warranting exercise of revisional jurisdiction---Revision petition was dismissed, in circumstances.

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

----O.XXII, Rr. 3 & 4---Death of party---Scope---Failure to bring on record legal representatives of dead party in the pending proceedings is not fatal to the proceedings, unless it causes some serious prejudice to them.

Miraj Din and 56 others v. Evacuee Trust Property Board, Lahore and others PLD 2004 SC 430; Bashir Ahmad through L.Rs. v. Muhammad Hussain and another 2010 SCMR 822 and Haji Ali Muhammad and others v. Mir Ahmed Khan and others 2000 MLD 435 ref.

----S. 12(2)---Bar to further suit---Recording of evidence---Framing of issues---Scope---Court is not required to frame issues in every application filed under S.12(2), C.P.C.---Court is vested with the powers to decide the application even without framing of issues, if it is of the opinion that framing of issues is not necessary.

Mrs. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296 ref.

YLR 2022 LAHORE HIGH COURT LAHORE 1678 #

2022 Y L R 1678

[Lahore]

Before Ali Baqar Najafi, J

ZUBAIR AHMED and another---Petitioners

Versus

SAIMA ANWAR and another---Respondents

Writ Petition No. 16611 of 2015, decided on 1st February, 2016.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Civil Procedure Code (V of 1908), O. XIV, R. 1---Suit for recovery of dowry articles---Framing of issues---Scope---Plea raised belatedly---Respondent (wife) filed a suit for recovery of dowry articles wherein she, inter alia, claimed the return of a vehicle---Family Court framed a generalized issue regarding the entitlement of respondent to claim dowry articles---Suit was decreed---During pendency of appeal, petitioner (husband) filed an application for framing additional issues regarding the ownership of vehicle---Appellate Court dismissed the application while holding that findings of Family Court on the issue were comprehensive and no additional issue was required to be framed---Validity---Vehicle in question was registered in the name of petitioner---Question whether it was sold off to the petitioner or was given by the father of respondent as part of dowry articles had already been dealt with by the Family Court---No sale receipt was produced by the petitioner to show that it was a sale---Petitioner had not denied that transfer of vehicle was made immediately after the marriage was contracted---Very fact that no application for framing of additional issues was filed during 3 years of pendency of suit and one and a half year of the pendency of appeal showed that petitioner had raised the plea after a fatal delay---Writ petition was dismissed.

PLD 1985 Pesh. 38; Nadeem Azam v. Additional District, Judge Shujabad, Multan and another 2010 CLC 1594 and Asghar Mehmood v. Judge Family Court and another PLD 2002 Lah. 410 ref.

Hafiz Abdul Rehman Ansari for Petitioner.

YLR 2022 LAHORE HIGH COURT LAHORE 1702 #

2022 Y L R 1702

[Lahore (Rawalpindi Bench)]

Before Sadaqat Ali Khan and Sadiq Mahmud Khurram, JJ

MOHSIN ABBAS---Appellant

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 1094 of 2017, 43 of 2018 and Murder Reference No. 101 of 2017, heard on 1st October, 2020.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Extra-judicial confession--- Scope--- Accused were charged for committing murder of the son of complainant by firing---Prosecution had examined two witnesses to prove the extra-judicial confession allegedly made by the accused in the case who got recorded their statements and stated that at about 7.00 p.m. the accused and his co-accused (since acquitted) came to the shop of one of the witnesses and confessed to have murdered the deceased---Both the witnesses told the said fact to the complainant of the FIR---Question arose as to why the accused would make his breast clean when apparently he was under no compulsion to oblige the prosecution which was clueless about the circumstances leading to the death of the deceased---Alleged extra-judicial confession was so detailed and comprehensive that it covered almost every aspect of the prosecution case---Man under the stress of compunction of his conscious was not supposed to give such minute details that too on the assurance of help---Witnesses deposed that accused and his co-accused (since acquitted) requested them to arrange pardon for them from the legal heirs of the deceased---Admittedly, both the witnesses of extra-judicial confession admitted in their cross-examination that they did not possess any influential portfolio at that time to have any influence to beg pardon for the accused from the complainant---Said witnesses also admitted in their cross-examination that they did not try to apprehend the accused at the time of making the said extra-judicial confession in spite of the fact that he was allegedly present in their company of his own volition, in a shop---Both the said witnesses were so naive that they let the accused leave the shop without making any effort to apprehend him or his co-accused---Deceased happened to be related to both the witnesses but they did not react at all to the confessional statements of the accused and his co-accused and calmly saw them leaving, without even moving an inch---Said witnesses had not mentioned in their statements that the accused had some weapon when they visited them to confess their guilt about the murder of deceased which could have precluded the said witnesses from apprehending the accused and his co-accused---Said conduct of witnesses was not natural in circumstances---Such peculiar facts spoke volumes regarding the lack of veracity in the statements adduced by witnesses and also shown their unusual behaviour and the same was otherwise contrary to the normal human behaviour---Another reason to reject the statements of said witnesses was that according to those witnesses, after the alleged confession of the accused and his co-accused, they both told the said fact to the complainant of the case on the same day---Witness during cross-examination stated that they told the fact of the confession of the accused before them to complainant of the FIR, within one hour of making of the same---However, the statement of complainant of the FIR found no mention in his statement that both the said witnesses ever told him regarding the said confession of the accused---Overwhelming analysis of the prosecution evidence with regard to extra-judicial confession, it had been concluded that the prosecution had manufactured the said extra-judicial confession in the case to strengthen the case against the accused after taking legal advice in that regard---High Court observed that story introduced by two witnesses about the extra-judicial confession of the accused seemed improbable---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

(b) Criminal trial---

----Extra-judicial confession---Scope---Extra-judicial confession is a very weak type of evidence and the same obviously needs impartial/strong corroboration from other independent sources.

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.

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Weapon of offence recovered on the disclosure of the accused---Reliance--- Scope--- Accused were charged for committing murder of the son of complainant by firing---Record showed that the disclosure of the accused made at the time of the recovery of 30-bore pistol was admissible and relevant and amounted to confession of guilt under the provisions of Art. 40 of the Qanun-e-Shahadat, 1984---Discovery of any fact on the information of the accused in custody of Police is admissible under Art. 40 of the Qanun-e-Shahadat, 1984---According to the prosecution case itself the accused had already made a confession of his guilt before the witnesses, the dead body had already been recovered, whereas the said recovery of 30-bore pistol was effected after more than a month---No new information was made available to the prosecution as all the details of the occurrence were already in knowledge of the prosecution by virtue of the alleged extra-judicial confession of the accused---Alleged statement of the accused made in police custody at the time of recovery of the pistol 30-bore could not be read in evidence and would remain inadmissible---Pointing out the place of murder of the deceased was also not relevant as no new fact was discovered in consequence of said pointing out and the place of occurrence was already in knowledge of the witnesses---Regarding the recovery of the 30 bore pistol from the accused, the same could not be relied upon as the fact remained that Investigating Officer of the case did not join any witness of the locality during the recovery of the said 30-bore pistol from the accused which was in clear violation of S.103 of the 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 hence hit by the exclusionary rule of evidence---Witness, in whose presence the alleged recovery of 30-bore pistol was made, was related to the witness as his uncle---Witness further admitted that his house was situated at a distance of four kilometers from the place of recovery---Complainant further admitted that the Investigating Officer did not ask any person resident of the area surrounding the place of recovery despite the fact that many of them had gathered there at the said time---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

Fazal Subhan and another v. The State and others 2019 SCMR 1027 and Muhammad Ismail and others v. The State 2017 SCMR 898 rel.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Call Data Record---Scope---Accused were charged for committing murder of the son of complainant by firing---Prosecution had also relied upon the Call Data Record collected during the investigation of the case so as to prove the guilt of the accused---According to the statement of complainant his son received a call of someone and then left his house---During the investigation of the case or before the Trial Court complainant failed to produce any recording of the call which his son had received on his cell phone from the said unknown caller---No voice record or its transcript had been brought on record---In absence of any voice call data or record, simply the production of the Call Data Record without the disclosure of the detail of the conversation was not relevant to prove any fact supporting the prosecution case against the accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

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

(e) Criminal trial---

----Appreciation of evidence---Principle---Only the intrinsic worth and probative value of the evidence will play a decisive role in determining the guilt or innocence of an accused person.

Waqar Zaheer v. The State PLD 1991 SC 447 and Imran alias Dully and another v. The State and others 2015 SCMR 155 rel..

(f) Criminal trial---

----Circumstantial evidence--- Scope---Imperative for the prosecution to provide all links in chain, where one end of the same touched the dead body and the other, neck of the accused.

Fiaz Ahmad v. The State 2017 SCMR 2026 rel.

(g) Criminal trial---

----Benefit of doubt---Principle---If only a single circumstance creating reasonable doubt in the mind of a prudent person is available then its benefit is to be extended to an accused not as a matter of concession but as of right.

Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Raja Ghaneem Aabir Khan for Appellant.

Sajjad Hussain Bhatti, Deputy Prosecutor General for the State.

Nemo for the Complainant.

YLR 2022 LAHORE HIGH COURT LAHORE 1725 #

2022 Y L R 1725

[Lahore (Multan Bench)]

Before Sardar Ahmed Naeem, J

ZAHID RASOOL and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No.1133 of 2017, Criminal Revision No.194 and P.S.L.A. No.39 of 2018, heard on 28th June, 2021.

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

----Ss. 302(b) & 34---Qatl-i-amd common intention--- Appreciation of evidence---Benefit of doubt---Medical evidence---Scope---Accused were charged for committing murder of the brother of the complainant by firing---Motive behind the occurrence was that the cattle of the accused party quite often entered in the complainant's field and destroyed their standing crops which often resulted into fight---Medical Officer had observed twelve injuries on the person of the deceased---Six Injuries were entry wounds, however, the dimensions and width of all entry wounds were different---Time between the injuries and death was instantaneous and between the death and post-mortem was 7 to 8 hours---Said witness had admitted during the cross-examination that he observed no corresponding hole on Qamiz and Shalwar of the deceased---Post-mortem was conducted immediately after the receipt of death body---Witness further admitted that probable time between death and post-mortem was calculated from the available police papers and possibility could not be ruled out that probable period between death and post-mortem was about 12 to 16 hours as in that case rigor mortis was fully developed and the post-mortem staining was present---Though the witnesses claimed to have seen the occurrence and ascribed specific role of causing repeated firearm injuries to the accused persons but that fact was not supported by the available evidence---Circumstances established that the prosecution failed to prove its case against the accused persons beyond reasonable shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd common intention---Appreciation of evidence---Benefit of doubt---Defective investigation---Scope---Accused were charged for committing murder of the brother of the complainant by firing---Record showed that the deceased had gone by a tractor for ploughing the fields---No tractor was taken into possession or shown in the un-scaled or scaled site plan---Deceased fell down after sustaining the firearm injuries and was lifted by both the eye-witnesses, who claimed that their clothes got blood stained but neither those clothes were taken into possession during the investigation nor produced by the witnesses---Complainant being dissatisfied with the investigation filed the private complaint with his own story but had not appended any scaled site plan with the private complaint nor cited any other draftsman in the calendar of witnesses appended---Circumstances established that the prosecution failed to prove its case against the accused persons beyond reasonable shadow of doubt---Appeal against conviction was allowed, in circumstances.

----Ss. 302(b) & 34---Qatl-i-amd common intention--- Appreciation of evidence---Benefit of doubt--- Presence of eye-witnesses at the place and time of occurrence was doubtful---Scope---Accused were charged for committing murder of the brother of the complainant by firing---Record showed that the presence of the eye-witnesses at the place and time of occurrence was doubtful as their names did not find mention in the inquest report either in column No.4 or column No.24---Despite their acclaimed presence, the dead body was escorted to mortuary by Police Constable---Statement of the Medical Officer further suggested that the dead body was shifted to mortuary from Police Station, which belied the stand of the eye-witnesses that the dead body was shifted to mortuary from the place of occurrence---Investigating Officer disclosed in the cross examination that a motorcycle rickshaw driver was the first person who made a phone call to Emergency Rescue Service---Investigating Officer also admitted during the cross-examination that as per his investigation, the complainant and eye-witnesses were not present at the place and time of occurrence---Circumstances established that the prosecution failed to prove its case against the accused persons beyond reasonable shadow of doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Saleem v. The State 2010 SCMR 374 rel.

(d) Criminal trial---

----Motive---Scope---Prosecution was not bound to introduce the motive but once a motive was set up and not proved, it adversely affected the case of prosecution.

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

----Ss. 302(b) & 34---Qatl-i-amd common intention---Appreciation of evidence---Benefit of doubt---Motive was not proved---Scope---Accused were charged for committing murder of the brother of the complainant by firing---Witnesses though claimed the destruction of their crops by the cattle of the accused party and allegedly, the deceased was beaten by the accused party three days prior to the occurrence but no such documentary proof was produced during the investigation as admitted by the Investigating Officer during the cross-examination---Motive in the case was not proved---Circumstances established that the prosecution failed to prove its case against the accused persons beyond reasonable shadow of doubt---Appeal against conviction allowed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd common intention---Appreciation of evidence---Benefit of doubt---Weapon of offence was recovered on the pointation of accused---Reliance--- Scope--- Accused were charged for committing murder of the brother of the complainant by firing---Accused was arrested in the case and he got recovered pistol from a house not in his exclusive possession---Weapon allegedly recovered from the accused was found in working condition---Recovery was inconsequential--- Circumstances established that the prosecution failed to prove its case against the accused persons beyond reasonable shadow of doubt---Appeal against conviction was allowed, in circumstances.

(g) Criminal trial---

----Benefit of doubt---Principle---Not necessary that there might be many circumstances creating doubts---If there was circumstance which created reasonable doubt in a prudent mind about the guilt of the accused then accused would be entitled to the benefit of doubt.

Tariq Pervaiz v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.

(h) Criminal trial---

----Benefit of doubt---Principle---Benefit of doubt even slightest must be resolved in favour of the accused without any reservation.

Arif Hussain and others v. The State through Advocate-General and another 2005 YLR 2279 rel.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Improvements made by complainant--- Scope--- Accused were charged for committing murder of the brother of the complainant by firing---Record showed that the role ascribed to the accused persons in the crime report was different than that of private complaint---In the FIR, two fires were attributed to accused hitting right shin and left thigh of the deceased and two fires were also attributed to co-accused hitting left wrist and abdomen of the deceased---In the private complaint, attribution was somewhat different as three fires were attributed to accused, whereas, four fire shots were assigned to co-accused might be for the reason that the complainant/prosecution improved his version to bring that in line with the medical evidence keeping in view the number of injuries observed by the Medical Officer during the post-mortem examination--- Prosecution neither established the place of occurrence nor presence of the eye-witnesses was suggested from the available material--- Circumstances established that the prosecution failed to prove its case against the accused persons beyond reasonable shadow of doubt---Appeal against conviction was allowed, in circumstances.

Badar Raza Gillani for Appellants.

Laeeq ur Rehman, Assistant Deputy Public Prosecutor for the State.

Rehan Khalid Joiya for the Complainant (in Criminal Revision No.194 and P.S.L.A. No.39 of 2018).

YLR 2022 LAHORE HIGH COURT LAHORE 1742 #

2022 Y L R 1742

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram, J

EJAZ AHMAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No.57 of 2020, heard on 2nd March, 2021.

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

----S. 540---Power to summon material witness or examine person present---Expression "already examined"---Scope---Accused assailed order passed by Trial Court whereby it allowed the application filed by the prosecution under S. 540, Cr.P.C. and recalled the witness whose cross-examination was reserved by the accused---Term "already examined" as used in S. 540, Cr.P.C. could be easily construed to mean that a witness stood already examined when the order in which the witness was to be examined i.e. the procedure prescribed in Art. 133 of Qanun-e-Shahadat, 1984, had been followed and the examination of witness had been completed---Essential requirement was that the witness sought to be recalled and re-examined must have been already examined---Trial Court proceeded to allow the application even prior to the conclusion of cross-examination, hence, fell in error---Revision petition was allowed and the impugned order was set aside, in circumstances.

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

----S. 540---Power to summon material witness or examine person present---Scope---Section 540, Cr.P.C. deals with three kinds of cases and invests the Court with a power to deal with them---First case is of a person not examined by any Court and who is not present in Court---Such a person may be summoned by the Court to give evidence, in which case he will be summoned and examined by the Court---Second case is of a person who is present in Court though he is not summoned as a witness---In the present case also the Court can examine such a person, and the third case is of a person who has already been examined in Court and the Court is invested with the power to recall him and re-examine him---Such power, however, can be exercised by the Court if the evidence of such a person appears to the Court essential to the just decision of the case.

----Art. 133---Order of examination---Scope---Examination of a witness by the party who calls him is examination-in-chief---Examination of a witness by the adverse party is called cross-examination and the examination of the witness subsequent to the cross-examination by a party is re-examination---Article 133 of the Qanun-e-Shahadat, 1984, prescribes the order in which the witness is to be examined which says that the witness shall be first examined-in-chief, then the adverse party, if so desires, cross-examines, and then, if the party calling him, so desires, can get him re-examined---Said provision, therefore, lays down a procedure as to how a witness is called on behalf of a party is to be dealt with at the trial and the order in which the witness has to be examined by each party (prosecution and accused) during the trial.

Rana Shoukat Hayat Noon for Petitioner.

James Joseph for Respondent No.2.

Syed Nadeem Haider Rizvi, Deputy District Public Prosecutor for the State.

YLR 2022 LAHORE HIGH COURT LAHORE 1752 #

2022 Y L R 1752

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD RAFI---Petitioner

Versus

Mst. JAMILA BEGUM and others---Respondents

Civil Revision No. 1747 of 2015, heard on 5th March, 2021.

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

----O.XLI, R. 27---Additional evidence, production of---Principle---Permission to bring additional evidence cannot be accorded just to fill in lacunas left by a party in its evidence.

Muhammad Yusuf Khan Khattak v. S. M. Ayub and 2 others PLD 1973 SC 160; Muhammad Yousaf v. Mst. Maqsooda Anjum and others 2004 SCMR 1049; Muhammad Siddique v. Muhammad Sharif and others 2005 SCMR 1231 and Rana Abdul Aleem Khan v. Idara National Industrial Co-operative Finance Corporation Defunct through Chairman Punjab Cooperative Board for Liquidation, Lahore and another 2016 SCMR 2067 rel.

(b) Benami transaction---

----Scope---Suit regarding Benami dispute is not the one wherein genuineness or veracity of document is involved---Execution of instrument in such cases, is an admitted fact and seeker intends just rectification of document so as to eliminate/exclude name of Benamidar.

Rasool Bukhsh and another v. Muhammad Ramzan 2007 SCMR 85; Khan Muhammad v. Khursheed 2010 CLC 970; Muhammad Siddique (deceased) through LRs and others v. Mst. Noor Bibi (deceased) through LRs and others 2020 SCMR 483 and Muhammad Sajjad v. Muhamamd Anwar 1991 SCMR 703 rel.

----Art. 120---Civil Procedure Code (V of 1908), S.115---Suit for declaration and injunction---Limitation--- Benami transaction--- Concurrent findings of facts by two Courts below---Respondent-plaintiff claimed to be owner of suit property while petitioner-defendant was shown just Benamidar in year 1964 at the time when property was purchased---Trial Court and Lower Appellate Court concurrently decreed suit and appeal in favour of respondent-plaintiff---Plea raised by respondent-plaintiff was that concurrent findings of Courts below could not be disturbed by High Court while exercising revisional jurisdiction provided under S.115, C.P.C.---Validity---Suit was instituted after more than forty years of attestation of sale deed---Maximum period of six years had been provided under Art. 120 of Limitation Act, 1908, to seek a right---Since inception of litigation it was stance of petitioner-plaintiff that he engineered subject sale deed---When it had been known to petitioner-plaintiff since birth of document, then he took forty three years to file the suit and there was no plausible ground either introduced in plaint or explored through available evidence---Suit was barred by time and law was to help the vigilant and not the indolent---Judgments and decrees passed by two Courts below were result of misreading / non-reading of evidence as well as non-adherence to law laid down by superior Courts---High Court in exercise of revisional jurisdiction set aside concurrent findings of two Courts below and dismissed the suit filed by respondent-plaintiff--- Revision was allowed, in circumstances.

Ghulam Murtaza v. Mst. Asia Bibi and others PLD 2010 SC 569; Ahmad Sultan Khan v. Mst. Sanin Kausar and another 1986 SCMR 1591; Ch. Ghulam Rasool v. Mrs. Nusrat Rasool and 4 others PLD 2008 SC 146; Hamid Qayyum and 2 others v. Muhammad Azeem through legal heirs and another PLD 1995 SC 381; Muhammad Nawaz and 3 others v. Mst. Saina Bibi and 3 others 1974 SCMR 223; Central Board of Revenue, Islamabad through Collector of Customs, Sialkot Dry Port, Samberial District Sialkot and others v. Messrs Raja Industries (Pvt.) Ltd. through General Manager and 3 others 1998 SCMR 307; Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446; 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.

Muhammad Ahmad for Petitioner.

Malik Muhammad Shafique Rajpoot for Respondents Nos. 1 to 8 and 10.

Nasir Mahmud and Tahir Mahmood Mughal for Respondent No.9.

YLR 2022 LAHORE HIGH COURT LAHORE 1762 #

2022 Y L R 1762

[Lahore (Bahawalpur Bench)]

Before Farooq Haider, J

MUHAMMAD IKRAM---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 531 of 2015, heard on 10th July, 2019.\

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Presence of witnesses at the time and place of occurrence was doubtful---Scope---Accused was charged for committing murder of the son of complainant by firing---Occurrence allegedly took place at 1:30 am (night)---Complainant went to the police station and brought the machinery of law into motion through written application for registration of the case---First Information Report was registered at 04:30 a.m. (night) next day---Distance between place of occurrence and police station was just ten kilometres but FIR was got recorded after unexplained delay of three hours---Dead body of the deceased was brought to hospital at 02:45 p.m. for post-mortem examination---Delay in conducting post-mortem examination was not due to any administrative reason in the hospital rather due to delay in receiving police papers and dead body in the hospital---Police papers were not prepared till then---Such state of affairs reflected that case was not registered at the time claimed by the complainant/prosecution rather it was recorded with much delay, however, with ante-time proceedings---Neither complainant nor other cited witnesses were available at the relevant time and place of occurrence---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

Haroon Shafique v. The State and others 2018 SCMR 2118 and Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of more than four months in filing complaint--- Scope--- Accused was charged for committing murder of the son of complainant by firing---Record showed that complaint had been prepared with delay of more than four months after the alleged occurrence and registration of the case, for which, no plausible reason could be offered by the complainant---Complaint had not been put to the accused while examining him under S.342, Cr.P.C., therefore could not be used against him---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

Imtiaz alias Taj v. The State and others 2018 SCMR 344 rel.

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Ocular account---Scope---Accused was charged for committing murder of the son of complainant by firing---As per application for registration of the case, on hearing report of firing and hue and cry, complainant along with his son and another person went to the place of occurrence and had seen that two unknown accused persons were standing near the cot of deceased, who fled away on seeing them---Neither complainant nor his companions witnessed the occurrence as same was already over before their arrival at the place of occurrence and they could only notice standing of unknown accused persons near the cot of the deceased, who fled away after seeing them---Same was even otherwise understandable, it was a single fire shot because deceased only received one fire shot which went through and through or in other words it caused one entry and one exit wound---Only one crime empty shell was found at the place of occurrence---Complainant mentioned in application that they came at the spot after hearing report of firing and also deposed in his statement before the court that his house was 2/3 acre away from the place of occurrence---Occurrence had already taken place before their arrival at the spot---Site plan of place of occurrence prepared by Investigating Officer and in site plane prepared by Patwari with scale, house of the complainant or cited eye-witness had not been mentioned adjacent, near or around the place of occurrence, therefore, complainant and other cited eye-witness were even otherwise chance witnesses---Said witnesses could not be believed, in circumstances--- Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

Nazir Ahmad v. The State 2018 SCMR 787 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence--- Benefit of doubt---Dishonest improvements--- Scope---Accused was charged for committing murder of the son of complainant by firing---Record showed that after more than four months, complainant took a somersault and filed private complaint in the court by introducing dishonest improvement in the same with respect to seeing the occurrence himself and by his son---In the application, two persons were cited as companions/witnesses but in the complaint they were neither cited as witness nor produced during trial---Statement of the complainant clearly revealed that neither complainant nor other cited witness witnessed the occurrence---Accused were not known to them, therefore, foot trackers were called by the police for tracing out the clue of unknown accused---Eye-witness had not seen the occurrence and he had deposed falsely through dishonest improvements regarding material aspect i.e. seeing the occurrence, therefore neither he was trustful witness nor his testimony could be relied---Ocular account was neither confidence inspiring nor trustworthy/ reliable, therefore, same was discarded---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

Muhammad Arif v. The State 2019 SCMR 631 rel.

(e) Criminal trial---

----Medical evidence---Scope---Medical evidence could not speak about the author of the injury, it could only tell about seat, number of the injuries and the weapon with which those injuries had been caused and that's why it could never be termed as corroboratory piece of evidence rather only supportive/conformitory piece of evidence.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of pistols on the pointation of accused---Reliance---Scope---Accused was charged for committing murder of the son of complainant by firing---Pistols were recovered on the pointation of the accused---Said recovery was of no help to the case of prosecution because empty allegedly secured from the place of occurrence had not matched with the allegedly recovered pistols according to report of Forensic Science Agency---Circumstances established that the prosecution had been failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Maxim: falsus in uno falsus in omnibus--- Applicability---Record showed that same set of witnesses had been disbelieved to the extent of acquitted co-accused persons, therefore, said evidence could not be believed to the extent of present accused for the reason that "principle of sifting grains from chaff" was no more applicable rather principle "falsus in uno, falsus in omnibus" had been invoked for deciding criminal case---Circumstances established that the prosecution had been failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

Notice to Police Constable Khizar Hayat son of Hadait Ullah PLD 2019 SC 527 rel.

Ch. Noor Hassan for Appellant.

Najeeb Ullah Jatoi, Deputy Prosecutor General for the State.

Talat Mehmood Kakezai for the Complainant.

YLR 2022 LAHORE HIGH COURT LAHORE 1777 #

2022 Y L R 1777

[Lahore]

Before Sadaqat Ali Khan, J

AHMAD FRAZ---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No. 943 of 2012, heard on 14th March, 2022.

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

----Ss. 376 & 511---Rape---Punishment for attempting to commit offences punishable with imprisonment for life or for a shorter term---Appreciation of evidence---Benefit of doubt---Delayed FIR---Non-appearance of victim for medical examination---Effect---Prosecution case was that paternal niece of complainant was cutting fodder in the field for cattle, accused was also watering his nearby field who finding the victim alone attempted to commit rape with her---Victim while appearing before the Trial Court had reiterated the same story---Delay of two days in lodging of the FIR---Victim had not appeared for her medical examination---Complainant had appeared before the High Court and had extended his no objection on acceptance of the appeal and acquittal of the accused---Appeal filed by accused was accepted, his conviction and sentence awarded by the Trial Court was set aside, in circumstances.

(b) Criminal trial---

----Benefit of doubt--- Scope--- Not necessary that there should be many circumstances creating doubt ---If there is a single circumstance which creates reasonable doubt in the prudent mind about the guilt of the accused, then he would be entitled to its benefit not as a matter of grace or concession but as a matter of right.

Zaka-ur-Rehman Awan and Sheraz Zaka with appellant for Appellant.

Muhammad Naveed Umar Bhatti, DPG with M. Sharif, ASI for the State.

Complainant in person.

YLR 2022 LAHORE HIGH COURT LAHORE 1782 #

2022 Y L R 1782

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mahmood Abbasi and Sohail Nasir, JJ

IRFAN SALEEM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.980 and Murder of Reference No. 57 of 2018, heard on 21st June, 2021.

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

----Ss. 302(b) & 449---Qatl-i-amd, house-trespass in order to commit offence punishable with death---Appreciation of evidence---Sentence, reduction in---Presence of witnesses at the spot was justified---Scope---Accused was charged for committing murder of the brother of complainant by firing---Motive was that the accused had suspicion that deceased had illicit relations with his wife and because of that reason accused had divorced her---Complainant was a married person but he was issueless---Complainant in clear words claimed that he used to reside in the house of deceased since long and even two years after the occurrence he stayed in the same house---Not an iota of evidence or circumstance on record that complainant was having any other residence in the locality and when it was so, then no reason to disbelieve his existence with his real brother/deceased at place of occurrence---Same position was noticed about witness of wajtakkar, who, according to complainant, was residing in the same locality at a distance of about 100 feet and as per defence version at a distance of 400/500 yards from crime scene---Time of occurrence 04:00 a.m. in the month of August obviously was the time of Fajar prayer---Said witness in his examination in chief claimed that he was going to offer the 'Fajar' prayer in the mosque when he had seen the accused and his co-accused while escaping from crime scene, thus, presence of said witness in the street while he was moving for prayer was also quite natural---Circumstances established that accused had been rightly convicted by the Trial Court---Death penalty was converted into imprisonment for life as the same was extreme penalty, in circumstances---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b) & 449---Qatl-i-amd, house-trespass in order to commit offence punishable with death---Appreciation of evidence---Sentence, reduction in---Night time occurrence---Source of light---Scope---Accused was charged for committing murder of the brother of complainant by firing---Allegedly, no electric bulb was taken into possession or shown in the rough and scaled site plans--- Question arose for the identification of accused---Complainant categorically stated that electric bulb was there and it was on---Such fact was not a new stance of complainant because even in FIR it was stated that there was an electric bulb in the courtyard, however, record showed that neither that bulb was shown in the site plan nor it was taken into possession---Investigating Officer stated in his cross-examination that he reached at the spot at 6.45 a.m. and there was an electric bulb installed on the southern wall of residential room shown on the middle of the site plan---Light of the bulb was spreadable in whole courtyard---Light of bulb was sufficient for identification of a person in that light---Said bulb was switched on and he had seen the same and had not taken into possession the said bulb because he considered no need to take the same into possession---When defence availed right of cross-examination, no attempt was made to confront Investigating Officer with regard to his answers which he made on the questions by prosecution, thus, it was established that there was an electric bulb and that was on---Circumstances established that accused had been rightly convicted by the Trial Court---Death penalty was converted into imprisonment for life as the same was extreme penalty, in circumstances---Appeal was dismissed with said modification in sentence.

----Investigation---Defective investigation---Scope---Defective investigation conducted by a Police Officer could not stand in the way of complainant who was seeking justice from the court.

Mst. Sughran Bibi v. The State PLD 2018 SC 595 and Abdul Majeed v. The State 2008 SCMR 1228 rel.

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

----Ss. 302(b) & 449---Qatl-i-amd, house-trespass in order to commit offence punishable with death---Appreciation of evidence---Sentence, reduction in---Identification of accused---Scope---Accused was charged for committing murder of the brother of complainant by firing---Record showed that it was 25th of August, a day of most extreme hot season in that part of the country---Occurrence took place at about 04:00 a.m. and that fact had not been disputed by both the sides that it was almost dawn that meant the source of natural light was there---Accused was residing in the same area where occurrence took place---Not only in the charge, but also in his examination under S.342, Cr.P.C, accused had given his same address---In the statement of witness, it was mentioned that accused was known to him since childhood---When all were residing in one and the same Mohallah and familiar to each other since childhood, the identification by both the witnesses at the given time was not a difficult task---Circumstances established that accused had been rightly convicted by the Trial Court---Death penalty was converted into imprisonment for life as the same was extreme penalty, in circumstances---Appeal was dismissed with said modification in sentence.

Muhammad Aslam alias Akrai v. The State 2019 SCMR 610 rel.

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

----Ss. 302(b) & 449---Qatl-i-amd, house-trespass in order to commit offence punishable with death---Appreciation of evidence---Sentence, reduction in---Medical evidence---Scope---Accused was charged for committing murder of the brother of complainant by firing---According to the opinion of Medical Officer, duration between injuries and death was immediate, whereas between death and post mortem it was 6-7 hours---Examination of dead body made it clear that wounds were caused by 12 bore gun as those were pellet injuries---Pellets and cover of pellets were also removed from the dead body---Medical evidence was strong confirmatory evidence in the case and stood with ocular account---Circumstances established that accused had been rightly convicted by the Trial Court---Death penalty was converted into imprisonment for life as the same was extreme penalty, in circumstances---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b) & 449---Qatl-i-amd, house-trespass in order to commit offence punishable with death---Appreciation of evidence---Sentence, reduction in---Motive was not proved---Scope---Accused was charged for committing murder of the brother of complainant by firing---Motive in the case was that accused had a suspicion that deceased was having illicit relations with his wife and for that reason accused had divorced her---No proof of divorce by accused to his wife had been produced during trial and similarly Investigating Officer never joined that lady in the investigation for confirmation of fact of divorce---Motive had not been proved, in circumstances---Circumstances established that accused had been rightly convicted by the Trial Court---However, it was found that it was not a case of extreme penalty of death on the reason that motive in the case had not been proved by the prosecution---Death penalty was converted into imprisonment for life, in circumstances---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b) & 449---Qatl-i-amd, house-trespass in order to commit offence punishable with death---Appreciation of evidence---Sentence, reduction in---Absconsion of accused---Scope---Accused was charged for committing murder of the brother of complainant by firing---Record showed that accused was arrested after about four years and three months---During investigation, accused was declared as Proclaimed Offender and in that context prosecution had produced a Police Official---Absconsion of accused for more than four years was a conduct which was relevant under the law---Accused was duty bound to explain that why he avoided the process of justice for such a long period and where he remained by leaving his ordinary residence---No reasonable explanation could be furnished by the accused in his examination under S.342, Cr.P.C.---Circumstances established that accused had been rightly convicted by the Trial Court---Death penalty was converted into imprisonment for life as the same was extreme penalty, in circumstances---Appeal was dismissed with said modification in sentence.

Nawab Ali v. The State 2019 SCMR 2009 rel.

Samim Akhtar for Appellant.

Navid Ahmad Warraich, D.P.G. for the State.

Syed Zia Hussain Shah for the Complainant.

YLR 2022 LAHORE HIGH COURT LAHORE 1803 #

2022 Y L R 1803

[Lahore]

Before Safdar Saleem Shahid, J

MUHAMMAD AKHTAR and others---Petitioners

Versus

NIAZ AHMAD and others---Respondents

Civil Revision No. 356-D of 2000, decided on 20th October, 2021.

Civil Procedure Code (V of 1908)---

----Ss. 12(2), 151 & O. XLI, R. 21---Pre-emption---Maxim "a man who seeks equity must come with clean hands"---Grant of permission to re-deposit pre-emption amount---Suit for possession filed by respondent/pre-emptor (deceased) was concurrently decreed---Petitioners/ defendants filed revision petition before High Court which was dismissed for non-prosecution vide order dated 26.10.2000---Respondent filed execution petition and during its pendency he filed application on 08.12.2020 before the Trial Court claiming that since the revision petition had been dismissed, stay order issued on 20.07.2000 stood infructuous---Executing Court issued warrant of possession and concerned revenue officials completed the proceedings in compliance; report was submitted to Tehsildar; Assistant Commissioner verified the said proceedings; report was presented before executing Court and possession of the land was handed over to the decree holders---Petitioners/ defendants had filed application on 23.04.2001 for restoration of civil revision which was dismissed due to non-prosecution; vide order dated 31.01.2006 notice was issued to respondents (legal heirs of real respondent); on 27.08.2002 legal counsel appeared on behalf of the respondents and thereafter the case was not fixed, rather it was fixed on 22.06.2011 and on the said date counsel of the petitioners appeared and main civil revision of the petitioners was restored to its original number---During the proceedings of civil revision the respondents were proceeded against ex-parte---On 24.04.2012 High Court allowed the civil revision ex-parte and set-aside judgments/decrees passed by both the courts below and dismissed the respondent's suit with costs throughout---During the period in between dismissal of civil revision due to non-prosecution and the restoration of the same, the petitioners/vendees filed application before Trial Court for withdrawal of pre-emption amount which was allowed and same was withdrawn and received by the petitioners according to their respective shares---Petitioners remained silent for long time and then filed an applications for restoration of possession on 24.04.2015 and thereafter also filed the applications for re-depositing the sale consideration amount which was withdrawn by them earlier---Respondents / pre-emptors filed applications before High Court seeking rehearing of main civil revision wherein respondent was proceeded against ex-parte---High Court dismissed such applications on 05.05.2020 holding that the same had been filed in year 2015 not being within limitation period of 60 days from 24.04.2012---High Court also dismissed the application filed by the petitioners regarding the deposit of sale consideration amount which they had withdrawn from the learned Trial Court and application for restoration of possession was also turned down---Respondents assailed the orders of High Court in Supreme Court which remanded the case on 22.09.2020---Petitioners/ judgment debtors filed application for restoration of civil revision after six months of the dismissal of the civil revision and after four months of the proceedings of warrant of possession---In the said application petitioners did not mention anything regarding the proceedings of warrant of possession of the suit land---Record showed that they were present in such proceedings---Proceedings of the warrant of possession were completed by the revenue officials in accordance with law---Petitioners had not revealed the record of the application filed by them before the Civil Court for withdrawal of pre-emption amount---Conduct of petitioners/vendees showed that they had not come to the Court with clean hands---Relief (discretionary or otherwise) would not be available to a person who came to court with unclean hands---Application for rehearing of civil revision should be converted into the application under S.12(2) of Civil Procedure Code, 1908 because law is based on equity, the discretionary relief would be available to a person who comes to court with clean hands---Petitioners had impliedly accepted the claim of the pre-emptors and withdrew the pre-emption amount from the court and in that regard their application for restoration of civil revision had become infructuous---Applications filed by the respondents for re-hearing of civil revision were converted into the application under S.12(2) of C.P.C. read with S.151 of C.P.C. under the constitutional jurisdiction of High Court which were accepted---Constitutional petitions were disposed of accordingly.

Mirza Nazeer Ahmad Baig v. Additional District Judge, Kasur and 2 others 1996 CLC 1616 and Niaz Muhammad v. Mst. Noori 1997 MLD 406 ref.

Sh. Karim-ud-Din and Sh. Arfan Karim-ud-Din for Petitioners.

Aejaz Ahamd Ansari and Aqeel Ahmad Ansari for Respondents/ defendants.

YLR 2022 LAHORE HIGH COURT LAHORE 1822 #

2022 Y L R 1822

[Lahore (Bahawalpur Bench)]

Before Sadiq Mahmud Khurram and Ali Zia Bajwa, JJ

JAMSHAID alias BABLU and others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos.51-ATA, 53-ATA and 86-ATA of 2018, heard on 17th February, 2022.

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

----Ss. 365-A, 210 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for ransom, causing disappearance of evidence of offence, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused were charged for kidnapping the grandson of the complainant for ransom---Record showed that the alleged occurrence took place at Sham Wela and none had seen the accused persons while kidnapping the minor---Matter was reported to the police by complainant on the next day at 11:00 a.m. with the assertion that the unknown accused persons had kidnapped his grandson for some unknown reasons---Complainant, in the crime report, did not mention the factum of receiving telephonic call of unknown accused on his mobile phone demanding ransom for release of his grandson---Notwithstanding the fact that soon after 2/3 hours of alleged occurrence, complainant supposedly received telephonic call made by the accused persons---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of doubt---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

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

----Ss. 365-A, 210 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for ransom, causing disappearance of evidence of offence, common intention, act of terrorism---Appreciation of evidence---Call Data Record---Scope---Accused were charged for kidnapping the grandson of the complainant for ransom---Record revealed that the investigation of the case was conducted by three Investigating Officers, but none of them got verified the ownership of SIM (Subscriber Identity Module) allegedly used by the accused persons for demanding ransom from the complainant to connect them with the commission of alleged offence---Call Detail Record (CDR) was tendered in evidence by the prosecution but said record did not provide any details qua the ownership of mobile number allegedly used by the accused persons---Call Detail Record of another mobile number was tendered in evidence but nothing was available on the record that in what context said mobile number was used---Such Call Detail Record should conclusively show that mobile phone used in the occurrence was owned by the accused and should also show the location from where calls were made---Call Detail Record available on the record neither showed that mobile number used for demand of ransom amount was owned by any of the accused persons nor competent witness who generated such record and provided to investigating agency was produced before the Trial Court---Said circumstances compelled to hold that Call Detail Record, as tendered by the prosecution, did not advance its case and evidentiary value of such record was next to nothing being inconclusive--- Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of doubt---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Mian Khalid Perviz v. The State through Special Prosecutor ANF and another 2021 SCMR 522 and Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 rel.

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

----Ss. 365-A, 210 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Kidnapping or abduction for ransom, causing disappearance of evidence of offence, common intention, act of terrorism---Appreciation of evidence---Withholding of material evidence---Scope---Accused were charged for kidnapping the grandson of the complainant for ransom---Record showed that one of the eye-witnesses of payment of ransom and release of minor was given up by the prosecution without any plausible explanation---Such fact led to an adverse inference under Art. 129(g) of Qanun-e-Shahadat, 1984, that had he been produced in the dock he would have not supported the prosecution case---Only substantive evidence against the accused persons available on the record was testimony of a witness who paid ransom to two unknown accused persons and third unknown accused released the minor allegedly kidnapped---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of doubt---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Muhammad Saleem v. Muhammad Azan and another 2011 SCMR 474 rel.

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

----Art. 22---Test identification parade---Purpose and object---Purpose of identification parade is to find out whether accused was the actual perpetrator of the crime in question---If the name of the offender was not known to those who claimed to be eyewitnesses of the crime, but they stated that although they did not know the offender earlier, they could recall his facial features, physique and age in sufficient detail and would also be able to identify him if and when that accused is brought before them again---Purpose of prior test identification parade is to test and strengthen the veracity of eyewitnesses---Such test identification parade is beneficial, for both, the accused and the Investigating Agency---Test identification parade enabled the Investigating Officer to determine whether the witnesses had actually witnessed the perpetrator of the crime and test their capacity to identify him and thereby to exonerate the accused or implicate him on the strength of incriminatory evidence in shape of test identification parade.

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

----Art. 22---Test identification parade---Scope---Substantive evidence is the evidence of identification by witness in court and the test identification parade provided corroboration to the identification of the accused in court---Test identification parade is only considered as corroborative piece of evidence.

Justice M. Monir in his celebrated book 'Law of Evidence' rel.

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

----Ss. 365-A, 210 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 22---Kidnapping or abduction for ransom, causing disappearance of evidence of offence, common intention, act of terrorism---Appreciation of evidence---Joint test identification parade---Scope---Accused were charged for kidnapping the grandson of the complainant for ransom---Record showed that the test identification parade in the case was conducted jointly, wherein the accused persons were identified in one go while sitting jointly in three rows---Joint test identification parade had been rendered unsafe and untrustworthy by the Supreme Court, hence, same was not worthy of reliance---Such factums adversely hit the sanctity of test identification parade, therefore, no credence could be attached to it---Joint test identification parade, where no roles had been ascribed to the accused persons in which capacity they participated in the occurrence and where no description of suspected accused and other dummies had been provided in proceedings of test identification parade, was not worthy of reliance---High Court observed that no other option than to hold that reliance could not be placed to sustain the conviction of the accused persons on test identification parade conducted in sheer violation of settled law, therefore, same was discarded--- Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of doubt--- Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Mian Sohail Ahmed v. The State 2019 SCMR 956 rel.

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

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

----Ss. 365-A, 210 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for ransom, causing disappearance of evidence of offence, common intention, act of terrorism---Appreciation of evidence---Recovery of ransom amount and other articles---Reliance---Scope---Accused were charged for kidnapping the grandson of the complainant for ransom---Record showed ransom amount comprising of currency notes worth Rs.9,00,000/- bearing signatures of the complainant on its back on their pointing out after about one month and twenty days of alleged occurrence was recovered---Allegedly in pursuance of disclosures made by the accused persons, Rs.2,00,000/- were recovered on the pointing out of accused, Rs.2,00,000/- on the pointing out of co-accused and Rs.5,00,000/- on the pointing out of other co-accused---Complainant, who was a layman having no acquaintance with law, without the legal advice by the Investigating Officer put his signatures on the currency notes on his own apparently for the reason that when the same would be recovered at subsequent stage, it would lend strong corroboration to his case---In the same way, amazingly the accused persons kept the tainted money in their houses and did not spend even a penny, which was not appealable to a man of prudent mind---Recovery of ransom amount on the pointing out of the accused persons, in circumstances, seemed to be planted just to strengthen the prosecution case---So far as recovery of motorcycle and mobile phone along with two batteries on the pointing out of an accused was concerned, the Investigating Officer during cross-examination, in categorical terms, deposed that there was no record on file regarding ownership of said articles in the name of said accused---Even otherwise it was not the prosecution case that the recovered motorcycle was used by any of the accused persons during the commission of alleged occurrence---Recovery was considered as corroborative piece of evidence and where substantive evidence was not worthy of reliance, the same could not be taken into consideration to sustain conviction---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of doubt---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

(j) Criminal trial---

----Benefit of doubt---Principle---Not necessary, that there should be several circumstances for extending benefit of doubt, rather one reasonable doubt was sufficient to acquit an accused, not as a matter of grace but as of right.

Naveed Asghar and 2 others v. The State PLD 2021 SC 600 rel.

Sardar Afzaal Ahmed Mudaher for Appellants (in Criminal Appeal No.51-ATA of 2018).

Haroon-ur-Rasheed and Zafar Iqbal Awan for Appellants (in Criminal Appeal No.53-ATA of 2018).

Syed Zeeshan Haider for Appellant (in Criminal Appeal No.86-ATA of 2018).

Ch. Asghar Ali Gill, Deputy Prosecutor General for the State.

Ch. Irfan Ali Sindhu for the Complainant.

YLR 2022 LAHORE HIGH COURT LAHORE 1844 #

2022 Y L R 1844

[Lahore]

Before Malik Shahzad Ahmad Khan and Muhammad Tariq Nadeem, JJ

MUHAMMAD SARWAR---Appellant

Versus

The STATE another---Respondents

Criminal Appeal No.105580 and Murder Reference No.599 of 2017, heard on 7th September, 2021.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay of ten hours and fifteen minutes in conducting the post-mortem upon the dead body of the deceased---Effect---Accused was charged for committing murder of his wife/sister of the complainant by firing---Record showed that the post-mortem examination on the dead body of the deceased was conducted by Medical Officer with the delay of ten hours and fifteen minutes after registration of FIR---Keeping in view said material discrepancy arising out from the prosecution case, an adverse inference to the prosecution's case could be drawn that the intervening period had been consumed in fabricating a story after preliminary investigation and to wait for the relatives of the deceased, who were made witnesses subsequently, otherwise there was no justification for non-dispatching the dead body to the mortuary and providing police papers with such delay---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.

Irshad Ahmad v. The State 2011 SCMR 1190; Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068; Sufyan Nawaz and another v. The

State and others 2020 SCMR 192; Muhammad Yasin and another v. The State through P.G. Punjab and others 2020 SCMR 1237 and Khalid Mehmood and another v. The State and others 2021 SCMR 810 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---No justification for the presence of eye-witnesses at the spot---Chance witnesses---Scope---Accused was charged for committing murder of his wife/sister of the complainant by firing---Record showed that the complainant and eye-witness, happened to be the real brother and nephew of the deceased---Said eye-witnesses were not residents of the village where the occurrence took place, which fact was also admitted by Investigating Officer---Although, in the FIR, it had been narrated by the complainant that his deceased sister informed him telephonically through someone's phone that her husband had beaten her---During evidence, the prosecution had failed to describe phone number through which deceased made call to the complainant---Complainant had also not described about his phone number upon which he received the phone call of deceased---Complainant further stated that he could not tell the exact ages of all the children of his deceased sister---Said fact also indicated that complainant had no visiting terms with his sister and for that reason he failed to describe the ages of her children---Both the said eye-witnesses, therefore, could not justify the reason given by them for their presence in the house of the occurrence at the relevant time---Said witnesses were chance witnesses and as such their evidence was not free from doubt---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.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Sufyan Nawaz and another v. The State and others 2020 SCMR 192 and Muhammad Irshad v. Allah Ditta and others 2017 SCMR 142 rel.

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd---Appreciation of evidence---Withholding material evidence---Scope---Accused was charged for committing murder of his wife/sister of the complainant by firing---Prosecution evidence, showed that the lady had three sons and two daughters, who were also inmates of the house but not a single child was produced during the trial as a witness---Although, Investigating Officer, during his cross-examination stated that he had interrogated the children but he did not bring on record their interrogation---Abandoning of the said witnesses obviously led to an adverse inference in terms of Art. 129(g) of the Qanun-e-Shahadat, 1984 that had they been produced in the witness box, they might have not supported the prosecution case---If any party withheld the best piece of evidence, then it could fairly be presumed that such party had some sinister motive behind it---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.

Lal Khan v. The State 2006 SCMR 1846 and Muhammad Rafiq and others v. The State 2010 SCMR 385 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular and medical evidence--- Contradictions--- Effect---Accused was charged for committing murder of his wife/sister of the complainant by firing---Record showed that the accused made fire shot upon deceased, which landed on her back but the Medical Officer, who conducted the autopsy on the dead body of deceased, had described that injury as exit wound---Material contradiction existed between the ocular and medical evidence---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.

Ali Sher and others v. The State 2008 SCMR 707; Amin Ali and another v. The State 2011 SCMR 323; Abdul Jabbar and another v. The State 2019 SCMR 129; Ishtiaq Hussain and another v. The State and others 2021 SCMR 159 and Najaf Ali Shah v. The State 2021 SCMR 736 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence and crime empty---Reliance---Scope---Accused was charged for committing murder of his wife/sister of the complainant by firing---Accused was arrested and he got recovered 12-bore double barrel gun and a cartridge having been fired from the same gun---Crime empty was sent to the office of Forensic Science Agency after the arrest of the accused---Although report of Forensic Science Agency was positive qua the gun but it had not been explained by the prosecution that why the crime empty was not sent to the office of Forensic Science Agency till the arrest of accused---Said fact made the report of Forensic Science Agency inconsequential--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.

Muhammad Amin v. The State and another 2019 SCMR 2057 and Asad Rehmat v. The State and others 2019 SCMR 1156 rel.

(f) Criminal trial---

----Recovery--- Scope--- Recovery being purely corroboratory in nature could not only be considered to sustain conviction on a capital charge.

(g) Criminal trial---

----Evidence--- Direct or substantive evidence---Scope---Unless direct or substantive evidence was brought on record, conviction could not be recorded on the basis of such type of evidence howsoever convincing it might be.

Muhammad Irshad v. Allah Ditta and others 2017 SCMR 142 and Muhammad Mansha v. The State 2018 SCMR 772 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive not proved---Scope---Accused was charged for committing murder of his wife/sister of the complainant by firing---Motive behind the occurrence was stated to be the quarrel between the spouses i.e. accused did not pay maintenance allowance to the deceased but it was an oral assertion of the complainant---No material evidence in the shape of ocular or documentary evidence was produced to substantiate the motive alleged by the prosecution---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.

(i) Criminal trial---

----Motive---Scope---If prosecution set-up a motive but failed to prove it, then, it was the prosecution who had to suffer and not the accused.

(j) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance creating doubt in a prudent mind, the benefit thereof must accrued in favour of the accused as matter of right and not of grace.

Muhammad Mansha v. The State 2018 SCMR 772; Muhammad Imran v. The State 2020 SCMR 857; Najaf Ali Shah v. The State 2021 SCMR 736 and The State through P.G. Sindh and others v. Ahmed Omar Sheikh and others 2021 SCMR 873 rel.

Syed Ali Muhammad Zahid Bokhari, Faiza Nawaz and Khalida Parveen for Appellants.

Rai Akhtar Hussain, D.P.G. for the State.

Sardar Liaqat Ali Dogar for the Complainant.

YLR 2022 LAHORE HIGH COURT LAHORE 1867 #

2022 Y L R 1867

[Lahore]

Before Shahid Bilal Hassan, J

Shaikh MUHAMMAD TARIQ---Petitioner

Versus

Messrs PREMIUM DEVELOPERS through C.E.O.---Respondent

Civil Revision No.49091 of 2021, decided on 11th March, 2022.

Civil Procedure Code (V of 1908)---

----Ss.2(14) & 36---Specific performance---Execution petition---"Executable order"---Scope---Petitioner agreed to sell 30 acres of land for a consideration of Rs.94 crore bounding the respondent to pay 1/4th amount of total consideration amount within 50 days and remaining amount was to be paid in 6 equal installments till performance date (i.e. 01.03.2019)---Respondent filed suit for specific performance of agreement and Trial Court ordered the respondent to deposit the remaining consideration amount in the Court but respondent failed to deposit the same---Responded submitted application and prayed for the suit to be decided in terms of compromise and on the same day counsel for the respondent got recorded his statement before the Court for vacation of stay to the extent of 15 acres 12 marlas land belonging to the petitioner, which was vacated---Respondent paid 5% amount (i.e. Rs.37,920,330/-) of the totalsale consideration---Respondent also paid amount of Rs.90,000,000/- to the petitioner---Petitioner contended that respondent did not comply with the compromise and failed to pay the remaining amount under terms of compromise---Trial Court passed detailed order directing the respondent to pay the remaining amount---Respondent did not comply with the said order, instead filed revision petition before High Court which was pending---Respondent filed execution petition and the executory Court ordered the petitioner to get 30 acres of land in respect of the response to the received amount---Validity---Order of Trial Court divulged that the same was passed only for vacation of stay order to the extent of 30-acres land---Such order did not mention that the said 30-acres land would be transferred in the name of the respondent in pursuance of amount of Rs.90,000,000/---As per terms of the compromise, the respondent was bound to pay 1/4th of the agreed amount, whereas the amount paid by respondent i.e. Rs.90,000,000/-, in no way was 1/4th of the total amount---Orders sought to be executed by filing execution petition as per S.36 of the Code of Civil Procedure, 1908, were not executable---No "executable order" was in the field---Revision petition was accepted accordingly.

Bakhtawar and others v. Amin and others 1980 SCMR 89 rel.

Mian Muhammad Hussain Chotiya and Adnan Naseer Chohan for Petitioner.

Shazib Masud and Mirza Nasar Ahmad for Respondent.

YLR 2022 LAHORE HIGH COURT LAHORE 1886 #

2022 Y L R 1886

[Lahore]

Before Muhammad Tariq Nadeem, J

MUHAMMAD ASIF---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.81066 of 2017, heard on 7th December, 2021.

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

----Ss. 396, 460 & 412---Dacoity with murder---All persons jointly concerned in lurking house-trespass or house-breaking by night punishable for qatl or hurt caused by one of them---Dishonestly receiving property stolen in the commission of a dacoity---Appreciation of evidence---Prompt FIR---Night-time occurrence---Recovery of hair of accused---Effect---Accused along with five others was alleged to have committed dacoity, murdered the grandson of complainant aged about 09 months and injured the complainant's wife---Matter was reported to the police promptly---Name of accused with his role of causing pistol shot on the back of the chest of deceased with intention to murder him was mentioned---Prosecution witnesses were natural and truthful; their presence at the time and place of occurrence was quite natural---Prosecution Witnesses had given specific reasons for their presence at the place of occurrence because they were closely related to the deceased---Prosecution Witnesses had no reason to let off the real culprits and involve the accused falsely in the case---Medical evidence was in complete harmony with the ocular testimony---Electric bulb which was lighting at the time of occurrence was specifically mentioned in the FIR and the same was subsequently taken into possession by the Investigating Officer---Hair of appellant taken into possession by the Investigating Officer had matched with the DNA profile of the accused---Identity card of the complainant as well as Rs. 5000 was recovered from the possession of accused---Prosecution had successfully proved its case against the accused despite the fact that empties collected from the spot were not found to have been fired from the pistol recovered at the instance of accused---Appeal was dismissed.

Abdul Wasay and others v. The State and others 2021 SCMR 1059 and Muhammad Hayat and another v. The State 2021 SCMR 92 ref.

(b) Criminal trial---

----Evidence---Substitution of accused---Scope---Substitution of real culprits especially in cases where the eye-witnesses lost their kith and kin before their own eyes is rare phenomenon.

Arshad Beg v. The State 2017 SCMR 1727 ref.

Khizar Hayat v. The State 2011 SCMR 429 rel.

----Evidence---Interested witness---Scope---Interested witness is one who is interested in the conviction of an accused for some ulterior motive.

Abdul Rauf v. The State and another 2003 SCMR 522; Zakir Hussain v. The State 2008 SCMR 222; Sheraz Khan v. The State 2010 SCMR 1772 and Zia Ullah and another v. The State and Muhammad Aslam v. The State 2012 SCMR 593 ref.

Ghulam Murtaza v. The State 2021 SCMR 149 rel.

Raja Rafaqat Ali for Appellant.

Hafiz Asghar Ali, Deputy Prosecutor General for the State.

Ahya ud Din for the Complainant.

YLR 2022 LAHORE HIGH COURT LAHORE 1895 #

2022 Y L R 1895

[Lahore]

Before Aalia Neelum and Farooq Haider, JJ

MAZHAR ABBAS---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.75131 of 2019, heard on 30th September, 2021.

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

----Ss. 363, 343 & 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping, wrongful confinement for three or more days, kidnapping or abducting with intent to secretly and wrongfully confine person---Act of terrorism---Appreciation of evidence---Benefit of doubt--- Contradictory statements--- Scope--- Prosecution case was that the daughter of complainant aged about 9/10 years went outside the house to purchase some eatable things from shop but an unknown accused abducted her within the view of two prosecution witnesses---Demand of ransom was not proved nor ransom was paid---Both the referred prosecution witnesses had clearly stated that the accused was not involved in the abduction---Non-production of entries of roznamcha regarding the departure of police from one district to another for raiding the house of accused was fatal for the case of prosecution---Prosecution witnesses had contradicted each other on material points---Complainant himself had stated that his daughter had come back to the house on her own---Recovery of abductee from the custody and house of accused could not be proved by the prosecution---Letters containing demand of ransom by accused were neither sealed by the police after taking into possession nor immediately sent to the Forensic Laboratory---Prosecution had failed to prove its case against accused beyond any shadow of doubt---Appeal was allowed, in circumstances.

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

(b) Criminal trial---

----Recovery---Corroborative evidence---Scope---Recovery is only corroborative piece of evidence and it enhances the gravity of substantive evidence but when case is not proved through substantive evidence then corroborative piece of evidence loses its efficacy.

Mian Pervaiz Hussain for Appellant.

Muhammad Moeen Ali, Deputy Prosecutor General for the State.

YLR 2022 LAHORE HIGH COURT LAHORE 1920 #

2022 Y L R 1920

[Lahore (Bahawalpur Bench)]

Before Muhammad Amjad Rafiq, J

MUZAFFAR NAWAZ---Petitioner

Versus

ISHRAT RASOOL and another---Respondents

Criminal Revision No.168 of 2019, heard on 13th September, 2021.

Muslim Family Laws Ordinance (VIII of 1961)---

----S. 6---Family Courts Act (XXXV of 1964), Ss. 20 & 5, Sched.---Constitution of Pakistan, Art. 175--- Establishment of Family Courts---Object--- Family Court as Judicial Magistrate---Jurisdiction of Family Court---Establishment and jurisdiction of Courts---Scope---Intention of legislature reflective from S. 20 of the Family Courts Act, 1964, is to hold all family affairs under an umbrella so that sanctity of family affairs and dignity of spouses should be saved from public exposure in ordinary Courts---Word "exclusive" used in S. 5 of the Family Courts Act, 1964, makes it vividly clear that no other Court can assume jurisdiction in respect of provisions of Muslim Family Laws Ordinance, 1961, except the Court constituted under the Family Courts Act, 1964---Only Family Court can assume jurisdiction in some offences of P.P.C. as mentioned in Part II of the Schedule, if committed against the spouses---Reason being that under S.20, Family Courts Act was authorized to act as Magistrate of First Class under the Code of Criminal Procedure---Article 175(2) of the Constitution in clear terms provides that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law---Offence under S. 6(5) of Muslim Family Laws Ordinance, 1961, would be tried by Family Court constituted under Family Courts Act, 1964.

Naseem Akhtar Durrani v. Mst. Abida Sultan and 3 others 1992 MLD 93; Ishtiaq Ahmad v. The State and others PLD 2017 SC 187; Bsharat Iqbal v. The State and another 1993 SCMR 1901; Shaukat Ali v. Kalsoom Akhtar and another PLD 1991 Lah. 247 and Mst. Fauzia Hussain v. Mian Khadim Hussain PLD 1985 Lah. 165 ref.

Malik Imtiaz Mahmood Awan for Appellant.

Muhammad Latif, Additional Prosecutor General for the State.

Hafiz Khaliq Ditta Langah for Respondent.

YLR 2022 LAHORE HIGH COURT LAHORE 1924 #

2022 Y L R 1924

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi and Ch. Abdul Aziz, JJ

HAMZA YAQOOB and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 776, 956 and Murder Reference No.71 of 2018, heard on 13th January, 2022.

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

----Ss. 302, 396, 412 & 34---Qatl-i-amd, dacoity with murder, dishonestly receiving property stolen in the commission of dacoity, common intention---Appreciation of evidence---Sentence, reduction in---Presence of eye-witnesses at the spot not doubtful---Scope---Accused were charged for committing murder of the deceased by firing during dacoity---Record showed that deceased and two eye-witnesses used to work at a Mill---Incident occurred when all the three after getting free from their work place reached the house of one eye-witness---Said witness while boarding a motorcycle dropped him---Crime scene was situated almost at the door step of eye-witness as was evident from site plan---Said foregoing aspect was sufficient to prove the presence of both the eye-witnesses at the spot---Even otherwise, the incident occurred at 07:00 p.m., whereas the statement of eye-witness was recorded without any delay at about 08:45 p.m.---Such prompt reporting of crime, more importantly by describing the assailants as unknown, out-rightly excluded all hypotheses about the absence of eye-witnesses from the spot---Purity of the ocular account was evident from the fact that two eye-witnesses were having no previous enmity with the accused, thus there was not even a remote possibility of false implication through substitution---Both the eye-witnesses provided confidence inspiring details of the incident including the number of assailants, the time and manner of incident, the description of snatched articles, the mode of shifting the deceased to hospital and the arrival of police---Presence of eye-witnesses at the spot was satisfactorily proved by the prosecution---Circumstances established that the prosecution had proved its case beyond any shadow of doubt, however, due to some mitigating circumstances death sentence of the accused was converted into imprisonment for life---Appeal was dismissed with alteration in sentence.

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

----Ss. 302, 396, 412 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, dacoity with murder, dishonestly receiving property stolen in the commission of dacoity, common intention---Appreciation of evidence---Sentence, reduction in---Test identification parade---Scope---Accused were charged for committing murder of the deceased by firing during dacoity---According to record, three accused were arrested and immediately thereafter were lodged in judicial custody for holding of identification test---Record showed that identification proceedings were held without any delay under the supervision of Special Judicial Magistrate---During said proceedings, the two eye-witnesses identified two accused and that too in reference to their specific roles---During identification proceedings, accused was burdened by the two eye-witnesses with the allegation of inflicting fatal shot upon the chest of deceased---Accused was subjected to identification proceedings in consonance with the instructions laid down in High Court (Lahore) Rules and Orders, Chapter 11, Part-C---Both the eye-witnesses were cross-examined at length by the defence but nothing could be extracted which might cast doubt about the legal worth and credibility of the identification proceedings---Circumstances established that the prosecution had proved its case beyond any shadow of doubt, however, due to some mitigating circumstances death sentence of the accused was converted into imprisonment for life---Appeal was dismissed with alteration in sentence.

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

----Art. 22---Joint identification parade---Scope--- Appreciation of evidence---Sentence, reduction in--- Joint identification was not prohibited by Rules and Orders of the (Lahore) High Court, Chapter 11, Part-C, but identification proceedings were desired to be conducted separately in pursuance of rule of prudence---Secondly, word "ordinarily" and the expression could be taken in suggestive form and not as mandatory in nature---If identification test proceedings were otherwise impeccable in nature, those could not be discarded solely on account of having been jointly conducted in respect of more than one accused, more importantly when each suspect was placed in a separate row and mixed with required quantity of dummies.

Kanwar Anwaar Ali's case PLD 2019 SC 488 and Muhammad Siddique and others v. The State 2020 SCMR 342 rel.

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

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

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

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

----Ss. 302, 396, 412 & 34---Criminal Procedure Code (V of 1898), S. 103---Qanun-e-Shahadat (10 of 1984), Art.40---Qatl-i-amd, dacoity with murder, dishonestly receiving property stolen in the commission of dacoity, common intention---Appreciation of evidence---Sentence, reduction in---Non-association of private persons in recovery proceedings---Effect---Accused were charged for committing murder of the deceased by firing during dacoity---Recoveries were called in question by the defence solely on the ground that the same were affected in violation of S.103, Cr.P.C., as no witness from the vicinity was associated during recovery proceedings by the police---Said articles were recovered upon the disclosure of accused, thus were relevant under Art. 40 of Qanun-e-Shahadat, 1984---Circumstances established that the prosecution had proved its case beyond any shadow of doubt, however, due to some mitigating circumstances death sentence of the accused was converted into imprisonment for life---Appeal was dismissed with alteration in sentence.

Hidayatullah and 7 others v. The State and others 1994 PCr.LJ 20; Pandurang Kalu Patil and another v. State of Maharashtra PLJ 2004 SC (India) 90 and Muhammad Ashiq v. The State 1998 PCr.LJ 1996 rel.

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

Fayyaz alias Fiazi v. The State 2017 SCMR 2024 rel.

Shaheen Akhtar and Amir Iqbal Malik for Appellant No.1.

Syed Azmat Ali Shah Bokhari for Appellant No.2.

Sheikh Muhammad Yaqoob for the Complainant.

Sajjad Hussain Bhatti, Deputy Prosecutor General Punjab with Waheed S.I. for the State.

YLR 2022 LAHORE HIGH COURT LAHORE 1981 #

2022 Y L R 1981

[Lahore]

Before Malik Shahzad Ahmad Khan and Asjad Javaid Ghural, JJ

MUHAMMAD YOUNIS and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 151447-J, 151450 and Murder Reference No. 2 of 2018, heard on 7th February, 2022.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of three hours and twenty five minutes in lodging the FIR---Scope---Accused was charged that he along with his co-accused in furtherance of their common intention committed murder of the father of complainant by firing---Occurrence in the case took place at 04:00 p.m. but the FIR was lodged on the same day at 07:25 p.m. i.e. after three hours and twenty five minutes of the occurrence---Distance between the place of occurrence and police station was only one Kilometer---Keeping in view the time of occurrence, the place of occurrence and its distance from the police station, it seemed that the FIR had not been promptly lodged in the case---No plausible explanation for the delay of three hours and twenty five minutes in lodging the FIR had been given by any prosecution witness specially when the deceased died at the spot and the police station was situated at a distance of only one kilometer from the place of occurrence---Circumstances established that the prosecution had failed to prove its case against he accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of eleven hours and thirty minutes in conducting post-mortem examination on the dead body of the deceased---Scope---Accused was charged that he along with his co-accused in furtherance of their common intention committed murder of the father of complainant by firing---Post mortem examination on the dead body of the deceased was conducted on the next day of the occurrence at 03:35 a.m., which meant that the post mortem examination on the dead body of the deceased was conducted after 11½ hours from the time of occurrence---No plausible explanation had been given by the Medical Officer or by any other prosecution witness for the said delay in conducting the post mortem examination on the dead body of the deceased---High Court observed that said fact suggested that eye-witnesses were not present at the spot at the time of occurrence therefore, the said delay was used in procuring the attendance of fake eye-witnesses---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Muhammad Ilyas v. Muhammad Abid alias Billa and others 2017 SCMR 54; Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327; Sufyan Nawaz and another v. The State and others 2020 SCMR 192; Zafar v. The State and others 2018 SCMR 326 and Muhanunad Ashraf v. The State 2012 SCMR 419 rel.

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---No justification was provided for the presence of eye-witnesses at the spot---Chance witnesses---Scope---Accused was charged that he along with his co-accused in furtherance of their common intention committed murder of the father of complainant by firing---Record showed that the complainant had conceded during his cross-examination that photographs of the deceased were taken during investigation and in the said photographs, eyes of the deceased looked semi open---Said fact showed that the complainant, who was real son of the deceased and other eye-witness, who was son-in-law of the deceased, were not present at the spot because had the said witnesses been present at the spot at the time of occurrence then they would have closed the eyes of the deceased---Both the eye-witnesses did not give any valid reason for their presence at "J" on the day of occurrence and as such they were chance witnesses, therefore, their presence at the spot at the time of occurrence was not free from doubt---Prosecution story did not appeal to prudent mind because if the accused party had planned to commit the murder of deceased and they had taken the deceased inside their house then as to why they kept on waiting for two and half hours till the arrival of witnesses to commit the murder of the deceased so that they the prosecution eye-witnesses might witness the occurrence and give evidence against them--- Prosecution eye-witnesses were not present at the spot at the relevant time---Circumstances established that the prosecution had failed to prove its case against he accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances.

Zahir Yousaf and another v. The State and another 2017 SCMR 2002 and Muhammad Asif v. The State 2017 SCMR 486 rel.

(d) Criminal trial---

----Witness---Chance witness---Scope---If a chance witness was unable to establish the reason of his presence at the spot at the time of occurrence then his evidence was not worthy of reliance.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Safyan Nawaz and another v. The State and others 2020 SCMR 192 and Muhammad Irshad v. Allah Ditto and others 2017 SCMR 142 rel.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Medical evidence and ocular account--- Conflict--- Scope---Accused was charged that he along with his co-accused in furtherance of their common intention committed murder of the father of complainant by firing---Medical evidence of the prosecution was furnished by Medical Officer---According to the statements of the prosecution eye-witnesses the fire shot made by the accused landed at the left side on the back of head of the deceased but according to the medical evidence the entry wound was on the back of right side of the head behind right ear of the deceased and as such there was conflict between the ocular account and medical evidence of the prosecution, which had created doubt in the prosecution story---Circumstances established that the prosecution had failed to prove its case against he accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Motive was not proved---Scope---Accused was charged that he along with his co-accused in furtherance of their common intention committed murder of the father of complainant by firing---According to the prosecution case the motive behind the occurrence was that the deceased refused to teach demonography (AMLIYAAT) to the accused and due to that grudge the accused persons committed the murder of deceased---No cogent evidence had been produced by the prosecution to prove the said motive---No specific date, time and place as to when and where the accused and his co-accused asked the deceased to teach them demonography (AMLIYAAT) and refusal of the deceased to do so had been given by any prosecution witness---Only a vague and general motive had been alleged by the prosecution, therefore, the prosecution failed to prove the alleged motive against the accused---Circumstances established that the prosecution had failed to prove its case against he accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence on the pointation of accused---Reliance---Scope---Accused was charged that he along with his co-accused in furtherance of their common intention committed murder of the father of complainant by firing---Record showed that pistol 30 bore was recovered on the pointatoin of the accused and positive report of the Forensic Science Agency---According to the statement of Moherror, Investigating Officer handed over to him a parcel said to contain 30 bore pistol which he handed over to Investigating Officer for its onward transmission to the office of Forensic Science Agency---Investigating Officer although stated that he handed over the parcel of pistol to Moherror for keeping the same in safe custody and for its onward transmission to the office of Forensic Science Agency but he did not state that he received back the parcel of pistol from Moherror and deposited the same in the office of the Forensic Science Agency--- Said facts suggested that the safe custody and transmission of parcel containing pistol to the office of the Forensic Science Agency had not been proved in the case by the prosecution beyond the shadow of doubt---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances.

(h) 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.

Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Ms. Saiqa Javed and Raja Rafaqat Ali, Defence Counsel for Appellant.

Munir Ahmad Sial, Deputy Prosecutor General for the State.

Mian Tabassum Ali for the Complainant.

YLR 2022 LAHORE HIGH COURT LAHORE 2005 #

2022 Y L R 2005

[Lahore]

Before Ali Baqar Najafi and Farooq Haider, JJ

HUSSAIN SHAH---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No.45686-J of 2021, heard on 21st April, 2022.

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

----Ss. 11-H, 11-I, 11-J & 11-N---Membership, support and meetings relating to a proscribed organization, fund raising, funding arrangements---Appreciation of evidence---Benefit of doubt---Accused was alleged to have been involved in collecting funds for his proscribed organization---Nothing was available on record that accused was member of proscribed organization or had any link with the same---Perusal of copy of Notification also did not reveal name of the accused as member or office bearer of the proscribed organization---Investigating Officer categorically stated that the accused was not the office bearer of proscribed organization---Investigating Officer also stated that it did not come during investigation that the accused had participated in any terrorist activity---Nothing was on record to show that the accused had been collecting funds for the said proscribed organization in the past---No evidence was produced to show that how he was inciting the public for raising fund for the proscribed organization and even any instrument for announcement had not been recovered from the possession of the accused at the spot---Prosecution was silent about the modus operandi of such fund raising for the proscribed organization---Case of prosecution was that accused was apprehended when he was busy in collecting fund for the proscribed organization and as many as 24 receipts of the receipt book were recovered from his possession which were issued by him---None of the persons, who gave fund to the accused for the proscribed organization, was apprehended or joined into investigation of the case---Prosecution could not establish as to how, when and from whom accused obtained the alleged receipt book of proscribed organization or from where it was got printed---Circumstances established that prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

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

----Ss. 11-H, 11-I, 11-J & 11-N---Membership, support and meetings relating to a proscribed organization, fund raising, funding arrangements---Appreciation of evidence---Benefit of doubt---Recovery of carbon copy of receipts--- Reliance--- Scope--- Accused was alleged to have been involved in collecting funds for his proscribed organization---Record showed that neither name or flag of any proscribed organization was available on the recovered receipts nor kind/type of currency was mentioned therein, so much so it did not show that any amount was received as fund---Prosecution case was that Receipt Book was secured through sealed parcel--- Judicial Magistrate categorically stated that parcel of specimen signatures of the accused was prepared, signed and sealed by him and he handed over said sealed parcel to the Investigating Officer for analysis---Investigating Officer also admitted the factum of receipt of sealed envelope regarding specimen handwriting of the accused from Area Magistrate and handing over the same to the Moharrir of the Police Station---Report of Forensic Science Agency did not reflect that parcels of receipt book as well as specimen signatures received in said agency were sealed---Safe custody and safe transmission of receipt book from place of recovery and of specimen signatures from date of preparation till their receipt by Forensic Science Agency could not be established which had vitiated the conclusiveness and reliability of the report of Forensic Science Agency and rendered it incapable of sustaining conviction---Circumstances established that prosecution had been failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

The State through Regional Director ANF v. Imam Bakhsh 2018 SCMR 2039 and Abdul Ghani and others v. The State and others 2019 SCMR 608 rel.

Ch. Muhammad Alamgir Alam for Appellant.

Humayun Aslam, Deputy Prosecutor General along with Imran Khan, S.I./C.T.D., Faisalabad for the State.

YLR 2022 LAHORE HIGH COURT LAHORE 2046 #

2022 Y L R 2046

[Lahore (Rawalpindi Bench)]

Before Sardar Ahmed Naeem and Muhammad Amjad Rafiq, JJ

ZEESHAN and 5 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.876-B of 2022, decided on 9th May, 2022.

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

----S. 497---Penal Code (XLV of 1860), Ss. 365, 365-A & 109---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abducting with intent secretly and wrongfully confine person---Kidnapping or abducting for extorting property, valuable security, etc---Abetment---Act of terrorism---Bail, grant of---Delayed FIR---Contradictory statements---Further inquiry---Scope---Accused persons sought post-arrest bail in an FIR lodged under Ss. 365, 365-A & 109, P.P.C., read with S. 7 of Anti-Terrorism Act, 1997---Allegation against accused persons was that of abduction for ransom---Incident was reported with unexplained delay of more than two hours---Accused persons were nominated in the crime report---Features of accused were not mentioned in the FIR---Statements of abductee recorded under Ss. 161 & 164, Cr.P.C. were at variance regarding mode and manner of the occurrence---Recoveries were effected from the accused persons and their physical custody was not required by the investigating agency---Accused persons were behind the bars since their arrest and their continuous detention for indefinite period would be unfair---Case against accused persons was one of further probe within the meaning of S. 497(2), Cr.P.C.---Petition was allowed and the accused persons were admitted to bail, in circumstances.

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

----S. 497---Bail---Scope---Every accused is entitled to fair and speedy trial and no bail can be withheld as punishment.

Arshad Hussain Yousafzai for Petitioners.

Sajjad Hussain Bhatti, Deputy Prosecutor General along with Naeem, Inspector.

YLR 2022 LAHORE HIGH COURT LAHORE 2052 #

2022 Y L R 2052

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi, J

SHAH FAISAL---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 783-B of 2022, decided on 19th April, 2022.

Criminal Procedure Code (V of 1898)---

----S. 497---Anti-Money Laundering Act (VII of 2010), Ss. 3 & 4---Foreign Exchange Regulation Act (VII of 1947), Ss. 5 & 23---Offence of money laundering---Restrictions on payments---Bail, grant of---Scope---Accused sought bail after arrest, who was allegedly a Manager involved in the business of hundi and FIA had recovered Pakistani currency in large quantity, hundi hawala receipts, mobiles containing messages of hundi hawala and large number of cheque books of various Banks---Accused was specifically nominated in the FIR with the specific allegation that at the time of raid he was apprehended red-handed from the premises but it was not disputed that he was not owner of the business premises which was being run by co-accused, who had already been apprehended and was still behind the bars---Accused was only an employee and performing his duties as Manager---No independent witness was associated and the proceedings were carried out in presence of FIA officials---None of the offences mentioned in the crime report fell within the ambit of prohibitory degree of S. 497, Cr.P.C and in such like cases bail was a rule and refusal was an exception---Case of accused was one of further inquiry---Petition for grant of bail was allowed, in circumstances.

Tariq Bashir v. The State PLD 1995 SC 34 ref.

Arshad Hussain Yousafzai for Petitioner.

YLR 2022 LAHORE HIGH COURT LAHORE 2055 #

2022 Y L R 2055

[Lahore (Bahawalpur Bench)]

Before Syed Shahbaz Ali Rizvi and Farooq Haider, JJ

ABDUL SHAKOOR alias MULLAN and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 329, 345 and Murder Reference No.52 of 2012, heard on 10th April, 2019.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 148 & 149---Criminal Procedure Code (V of 1898), Ss. 221 & 225---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Defective charge---Scope---Accused were charged for committing murder of two persons and murderous assault upon the complainant---Trial Court framed the charge against the accused and their co-accused with respect to murderous assault upon complainant and murder of one deceased, it was not framed with respect to the murder of other deceased---Modified charge was framed against the accused on a separate sheet and case was adjourned for judgment---Perusal of entire record showed that no modified charge was available on the record, however, amended charge was available on the separate paper---No record containing statement of accused with respect to plea of accused and their statement about any defence to make after framing of amended charge, was available in the entire record of the case---After framing of the charge, recording statement of accused about his plea or defence to make was mandatory---Perusal of amended charge through amended charge sheet showed that it was categorically mentioned therein that accused claimed trial but admittedly no trial was conducted thereafter and accused were straightaway convicted and sentenced through the impugned judgment---Such facts had individually and collectively caused serious prejudice to the accused and thus vitiated the trial---Case was remanded to the Trial Court by setting aside convictions and sentences recorded by the Trial Court for re-trial, in circumstances.

Muhammad Umair Mohsin along with, Muhammad Din and Abdul Ghafoor on bail for Appellants.

Asghar Ali Gill, Deputy Prosecutor General for the State.

Mirza Muhammad Azam for the Complainant.

YLR 2022 LAHORE HIGH COURT LAHORE 2067 #

2022 Y L R 2067

[Lahore]

Before Faisal Zaman Khan, J

MUHAMMAD RAFIQUE---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE SIALKOT and others---Respondents

Writ Petition No.250881 of 2018, heard on 1st December, 2021.

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

----S. 5, Sched.---Muslim Family Laws Ordinance (VIII of 1961), S. 10---Suit for recovery of dower---Deferred dower---Scope---Petitioner (husband) assailed judgments and decrees passed by courts below whereby respondent's (wife's) claim for recovery of dower amount was decreed---Contention of petitioner was that the marriage between the parties was still intact, therefore, the dower which was deferred in nature could not have been granted to the respondent---Validity---Prompt dower of the respondent was paid and deferred dower was also fixed regarding which no timeframe was given as to when it could be claimed by respondent---Deferred dower could only be paid to respondent either at the culmination of marriage or at the death of petitioner---Petitioner himself had admitted that he had divorced the respondent, as such, she was entitled to claim and recover the deferred dower---Constitutional petition was dismissed.

Saadia Usman and another v. Muhammad Usman Iqbal Jadoon 2009 SCMR 1458 ref.

(b) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 10--- Dower--- Scope--- Prompt dower is paid on demand whereas the deferred dower is paid either on the dissolution of marriage or on the death of husband---If some timeframe is given in the Nikahnama with regard to the demand of deferred dower then wife can claim the same before the dissolution of marriage or death of husband. [p. 2069] B

Saadia Usman and another v. Muhammad Usman Iqbal Jadoon (2009 SCMR 1458 ref.

----S. 7--- Talaq (Divorce)--- Scope---Where husband had pronounced divorce during pregnancy of wife and the period of 90 days as contemplated in Muslim Family Laws Ordinance, 1961, had expired during the period of pregnancy, High Court observed that the divorce between the parties became effective immediately on the birth of the child.

Malick Shahbaz Ahmad for Petitioner.

Naeem Shahzad for Respondents Nos. 3 and 4.

YLR 2022 LAHORE HIGH COURT LAHORE 2086 #

2022 Y L R 2086

[Lahore (Bahawalpur Bench)]

Before Farooq Haider, J

AHMAD KHAN---Appellant

Versus

The STATEand others---Respondents

Criminal Appeal No.224 and Criminal Revision No.100 of 2013, heard on 19th June, 2019.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of the husband of the complainant by firing due to grudge of return of paternal cousin of the complainant---Record showed that in application for registration of case, no time of occurrence had been mentioned---Complainant lady had not mentioned any time of occurrence in her examination-in-chief---Inquest report showed brief history, time of occurrence as 10.00 a.m., whereas time regarding information of death had been mentioned in Column No. 3 of 1st page of inquest report as 12:30 p.m.---First page of post-mortem report, 12:30 (noon) had been mentioned as time of death---During cross-examination, Investigating Officer had stated that at 10:00 am, he was informed about occurrence by the Moharir and he reached at the place of occurrence at 10:45 a.m.---Said state of affairs, clearly established that neither prosecution was sure about exact time of occurrence nor could establish the same---Circumstances established that the prosecution had failed to prove charge against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Place of occurrence was doubtful---Scope---Accused was charged for committing murder of the husband of the complainant by firing due to grudge of return of paternal cousin of the complainant---According to prosecution, place of occurrence was a house of another person remained in exclusive control and surveillance of complainant and other cited eye-witnesses after the occurrence till arrival of police, because as per claim of prosecution, accused fled away immediately from there, but no blood of deceased was secured from there---Availability of blood or any pellet/firing mark had not been found over there---Prosecution, claimed that dead body of the deceased remained there at place of occurrence for sufficient period, time between injury and death was immediate, death was due to hemorrhage i.e. blood loss and shock, therefore, non-availability of blood at stated place of occurrence had raised eyebrows and left question mark---Owner and resident of said house was neither witness nor accused, same was the position with respect to his remaining house mates---Neither said owner of house nor his any house mate had been joined into the investigation of the case---Place of occurrence had not been established---Circumstances established that the prosecution failed to prove charge against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Presence of the witnesses at the place of occurrence was doubtful---Scope---Accused was charged for committing murder of the husband of the complainant by firing due to grudge of return of paternal cousin of the complainant---Record showed that after receiving information about the missing of paternal cousin of complainant, the complainant, her son, deceased and his brother came out from their house for search of her cousin---Said persons straightaway came into house of occurrence within 5/6 minutes---Deceased when entered into the room accused fired at him; meaning thereby, occurrence took place between 8:00 to 9:00 a.m.---Complainant had deposed that police reached at the spot after 1 or 1½ hours; Investigating Officer in his statement deposed that he received information regarding occurrence at 10:00 a.m. and reached at the place of occurrence at 10:45 a.m.---Question was that why application for registration of case was prepared and moved to police with delay; why dead body was received in hospital with unexplained delay and why police papers were not sent with the dead body and same were received by Medical Officer with unexplained delay in the hospital---If post-mortem was delayed, as in the present case, then it was sufficient to establish that none of cited eye-witnesses including complainant was present at the time and place of occurrence---Time had been consumed for consultation, deliberation, procuring, inducing the witnesses and tailoring/concocting false story for registration of the case---Neither occurrence was promptly reported to the police nor case was registered promptly, hence, no sanctity could be attached to FIR and that important limb of prose-cution, which had to lay foundation of the case, had rather smashed the same---Presence of complainant and cited eye-witness at the relevant time at the alleged place of occurrence had also become doubtful---Circumstances established that the prosecution had failed to prove charge against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Chance witnesses---Scope---Accused was charged for committing murder of the husband of the complainant by firing due to grudge of return of paternal cousin of the complainant---Admittedly, complainant and cited eye-witness were not residents of the vicinity where occurrence took place, therefore, they were chance witnesses---Being chance witnesses, they were bound to prove valid reason of unimpeachable character for establishing their presence at the alleged place of occurrence---Complainant, stated that some person came to her house and told that his daughter was missing, upon which, she along with his son, deceased and his brother came out of the house for search of missing lady, but why said person did not accompany them for search of missing lady; then how they obtained knowledge that missing lady was in the house of that person and then how they came to know that accused was hiding in the kitchen of the house under the cot---House in question was adjacent to the other house; missing lady was even not found in the house of occurrence---Said reason/version did not appeal to the man of common prudence, same was neither plausible nor probable and by no stretch of imagination could be termed as of unimpeachable character, which was sine qua non i.e. mandatory for believing chance witness, thus, on that score alone, evidence of complainant and cited eye-witness could not be believed without pinch of salt---Circumstances established that the prosecution failed to prove charge against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances.

Mst. Shazia Parveen v. The State 2014 SCMR 1197; Muhammad Rafique v. The State 2104 SCMR 1698 and Mst. Sughra Begum and another v.

Qaiser Pervez and others 2015 SCMR 1142 rel.

(e) Criminal trial---

----Medical evidence---Scope---Medical evidence is mere supportive piece of evidence as it could not tell qua author of the injury.

Sajjan Solangi v. The State 2019 SCMR 872 rel.

(f) 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 the husband of the complainant by firing due to grudge of return of paternal cousin of the complainant---Claim of the prosecution was that the moment deceased entered the door of the kitchen/room, accused fired at him, therefore, direction of injury should be from downward to upward, but in the present case, position was otherwise i.e. vice-versa---Perusal of statement of Medical Officer showed that in the present case, injury was from upward to downward, therefore, medical evidence had not supported the ocular account, rather negated the same---Medical evidence and post-mortem report had also not been put to the accused under S.342, Cr.P.C., therefore, could not be used against him---Circumstances established that the prosecution failed to prove charge against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances.

Muhammad Saddique v. The State 2018 SCMR 71 and Imtiaz alias Taj v. The State and others 2018 SCMR 344 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence and crime empty---Reliance---Scope---Accused was charged for committing murder of the husband of the complainant by firing due to grudge of return of paternal cousin of the complainant---Record showed that pistol 12 bore was recovered on the pointation of the accused---No empty shell was found at place of occurrence---Allegedly recovered weapon and empty found in the same at the time of recovery were sent together to Forensic Science Agency---Weapon was allegedly recovered from open and public place, which was accessible to anyone---Recovery witness was also cited as eye-witness, therefore, he could not corroborate his own evidence---Pellets recovered from dead body of the deceased were not sent for comparison with allegedly recovered weapon---Recovery of weapon was of no help to the prosecution--- Circumstances established that the prosecution failed to prove charge against the accused beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court, in circumstances.

Syed Asif Ali Bukhari for Appellant.

Khalid Parvez Uppal, Deputy Prosecutor-General for the State.

Mirza Muhammad Azam for the Complainant.

YLR 2022 LAHORE HIGH COURT LAHORE 2102 #

2022 Y L R 2102

[Lahore]

Before Tariq Saleem Sheikh, J

MUHAMMAD BILAL SHAHID---Petitioner

Versus

GOVERNMENT OF THE PUNJAB and others---Respondents

Writ Petition No. 74269 of 2021, decided on 29th June, 2022.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Oil and Gas Regulatory Authority Ordinance (XVII of 2002), S. 22---Pakistan Oil (Refining, Blending, Transportation, Storage and Marketing) Rules, 2016, Rr. 28, 54, 55, 61, 62 & 63---Penal Code (XLV of 1860), S. 285---Harassment by police---Negligent conduct with respect to fire or combustible matter---Petitioner was aggrieved of order passed by Ex-officio Justice of Peace declining to issue direction to police from not harassing him---Validity---Petitioner had set-up an oil depot, licence was mandatory for such business activity under R. 28 of Pakistan Oil (Refining, Blending, Transportation, Storage and Marketing) Rules, 2016 but he failed to present any licence before High Court---Petitioner was liable to be prosecuted if he was engaged in any regulated activity without any licence---Such matter fell within the preview of inspection officers and Oil and Gas Regulatory Authority---Such was ordained to ensure compliance of Oil and Gas Regulatory Authority Ordinance 2002 and Pakistan Oil (Refining, Blending, Transportation, Storage and Marketing) Rules, 2016 in letter and spirit by all and sundry---Provision of S.285, P.P.C. was not attracted to sale of adulterated petroleum products---Although it was a cognizable offence yet it empowered police to proceed in only two situations, (i) where a person did any rash or negligent act with regard to any combustible material which endangered human life or was likely to cause hurt or injury to any other person, or (ii) where a person knowingly or negligently omitted to take appropriate steps to ensure that combustible matter in his possession did not become a threat to human life---High Court declined to determine whether petitioner had committed any illicit act and also refrained from making any observation---Petitioner had a right to be treated in accordance with law under Art. 4 of the Constitution and was at liberty to undertake legal proceedings where any right was denied to him---Constitutional petition was disposed of accordingly.

Naeem Akhtar and 2 others v. The State 1993 MLD 577; Liaquat Ali v. The State 1993 MLD 2279; Sh. Mahboob Ahmad v. SHO Police Station Rail Bazar, Faisalabad and others PLD 1999 Lah. 390; Tariq Mahmood v. Muhammad Jehangir Gorayia and 2 others 2003 YLR 239; Muhammad Sadiq v. Regional Police Officer, Muzaffargarh and 3 others PLD 2008 Lah. 335; Cool Industries (Pvt.) Ltd. v. Shafique Ahmed and 4 others 2010 MLD 435; Raja Ansar Nadeem Ahmad v. The State and others 2012 YLR 2855; Imam Ahsan v. Station House Officer and another 2014 PCr.LJ 838 and Messrs East and West Steamship Company v. Pakistan through the Secretary Government of Pakistan and 2 others PLD 1958 SC (Pak) 41 ref.

Zaka-ur-Rehman Awan and Sheraz Zaka for Petitioner.

Mukhtar Ahmad Ranjha, Assistant Advocate General for Respondents Nos. 1 to 9.

Asad Ali Bajwa, Deputy Attorney General and Syed Muhammad Haider Kazmi, Assistant Attorney General for Respondent No.10.

Barrister Haroon Dughal, assisted by Shahrukh Sheikh and Haider Noor Dughal for Respondent No.11.

YLR 2022 LAHORE HIGH COURT LAHORE 2114 #

2022 Y L R 2114

[Lahore]

Before Safdar Saleem Shahid, J

SADIA IQBAL---Petitioner

Versus

UMAR NASIM AHMED and another---Respondents

Writ Petition No. 14646 of 2016, decided on 8th March, 2022.

Family Courts Act (XXXV of 1964)---

----Ss 14(3) & 17---Appeal against interim order passed by Executing Court/Family Court---Provisions of C.P.C. and Qanun-e-Shahadat, 1984, not applicable to proceedings of Family Court---Scope---Actual point involved in the present petition was that whether first Appellate Court had jurisdiction to entertain appeal against the order of Executing Court/Family Court as per provisions of Ss.14(3) & 17 of the Family Courts Act, 1964---Family Courts Act, 1964, was a special law and all the proceedings were conducted under the said Act, and when provision of only one appeal was provided that mean there was philosophy behind the said provision of the Act and Family Court had been empowered to decide all the matters while observing the principle of law---Provisions of C.P.C and Qanun-e-Shahadat, 1984, were not applicable to the proceedings of Family Court in order to decide the matters within the shortest possible time with permanent solution---Only one right of appeal had been provided by the Family Courts Act, 1964, against the final order of the Family Court, whereas no provision of appeal or revision should lie against an interim order of Family Court, especially when the petitioner had taken a specific objection regarding the maintainability of appeal before the first Appellate Court, that matter should have been decided first in view of spirit of law---Constitutional petition was allowed.

Muhammad Sadiq v. Dr. Sabir Sultana 2002 SCMR 1950 rel.

Adnan Qureshi and Tanveer Hayat for Petitioner.

YLR 2022 LAHORE HIGH COURT LAHORE 2134 #

2022 Y L R 2134

[Lahore]

Before Ch. Muhammad Iqbal, J

MUHAMMAD AKBAR and others---Petitioners

Versus

MUHAMMAD MEHBOOB ALAM and others---Respondents

Civil Revision No. 1031 of 2010, heard on 23rd February, 2022.

Displaced Persons (Land Settlement) Act (XLVII of 1958) [since repealed]

----Ss. 22 & 25---Allotment of evacuee property---Bar on jurisdiction of Civil Court---Jurisdiction of Civil Court in respect of allotment of evacuee property was barred under Ss. 22 & 25 of Displaced Persons(Land Settlement) Act, 1958, and even any decree if passed by the Civil Court would be without jurisdiction, nullity in the eyes of law or void ab-initio in its entirety---Civil revision was allowed.

Muhammad Sadiq (decd.) through L.Rs. and others v. Mushtaq and others 2011 SCMR 239; Nasir Fahimuddin and others v. Charles Philips Mills and others 2017 SCMR 468; Muhammad Saleem and others v. Sardar Ali and others 2004 SCMR 1640; Ghulam Rasul and 5 others v. Jannat Bibi and 11 others 1990 SCMR 744; Allah Rakha (deceased) through LRs. and others v. Additional Commissioner (Revenue) Gujranwala and others 2020 SCMR 502 and Nazim-ud-Din and others v. Sheikh Zia-Ul-Qamar and others 2016 SCMR 24 rel.

Mian Ijaz Yousaf for Petitioners.

Asif Mahmood Cheema, Addl. Advocate General and Mian Khalid Habib Elahi for Respondents.

YLR 2022 LAHORE HIGH COURT LAHORE 2151 #

2022 Y L R 2151

[Lahore]

Before Shahid Bilal Hassan, J

NADEEM SADIQ---Petitioner

Versus

DEWAN MASIH GULRAIZ and 3 others---Respondents

Civil Revision No. 958 of 2013, decided on 12th May, 2022.

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

----S.12---Suit for specific performance---Petitioner/plaintiff claiming to be a bona fide purchaser, instituted a suit for specific performance against respondents/ defendants on the basis of agreement to sell---Two of the respondents appeared before Trial Court and recorded their statements to the effect that they had no objection on decreeing the suit in favour of petitioner---Third respondent submitted his written statement while confirming the sale of suit property to second respondent from whom first respondent purchased suit property and agreed to sell the same to the petitioner---Fourth respondent filed an application under O.I, R.10, C.P.C. for impleading him as defendant , which was accepted---Fourth respondent submitted written statement and alleged that a sale deed was executed in his favour during pendency of petitioner's suit---Petitioner moved an application under O.VI, R.17, C.P.C for amendment in plaint to the effect of sale deed in favour of fourth respondent to be declared null and void---Said application was accepted by Trial Court---Trial Court dismissed suit of petitioner/plaintiff---Appeal filed by petitioner was also dismissed by Appellate Court---Held, that there was no denial to the fact that petitioner derived his alleged right from first respondent as petitioner entered into agreement to sell with him (first respondent)but petitioner could not bring on record any document showing ownership of the first respondent with regards to the suit property , thus, when a person had no title with regards to the suit property, how could he entered into an agreement or transfer such property---When the position was as such, in presence of registered sale deed and mutation in favour of fourth respondent , the status of petitioner was nothing but an alien to the suit property ---No evidence with regards to alleged fraud in respect of execution of registered sale deed had been brought on record by petitioner/ plaintiff--- Civil revision was dismissed.

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

----S.115---Concurrent findings of fact could not be disturbed when the same did not suffer from mis-reading and non-reading of evidence, howsoever erroneous, in exercise of revisional jurisdiction---Civil revision was dismissed.

Muhammad Farid Khan v. Muhammad Ibrahim and others 2017 SCMR 679; Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469; Cantonment Board through Executive Officer, Gantt. Board Rawalpindi v. Ikhlaq Ahmed and others 2014 SCMR 161; Muhammad Sarwar and others v. Hashmal Khan and others PLD 2022 SC 13 and Mst. Zarsheda v. Nobat Khan PLD 2022 SC 21 rel.

A.D. Bhatti for Petitioner.

Tahir Gul Sadiq for Respondents Nos. 1(i), 2(ii).

Ch. Rashid Abdullah and M. Shahid Rafique Mayo for Respondent No.4.

Respondents Nos. 2(iii) to 2(viii) and 3 ex-parte on 16.02.2022.

YLR 2022 LAHORE HIGH COURT LAHORE 2157 #

2022 Y L R 2157

[Lahore]

Before Faisal Zaman Khan, J

HAMEED ULLAH KHAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MIANWALI and 3 others---Respondents

Writ Petition No. 24491 of 2016, heard on 22nd June, 2021.

Family Courts Act (XXXV of 1964)---

----S.5, Sched.---Failure to prove period of desertion---List of dowry articles---Items of daily usage---Wear and tear of dowry articles---Suit for recovery of maintenance allowance, delivery expenses and dowry articles instituted by respondent/wife and minor against petitioner/husband had been decreed, whereas, custody petition filed by petitioner had been dismissed---Accepting appeal preferred by respondents they had also been held entitled to recovery of gold ornaments and delivery expense---Held, decrees were passed by Family Court and Appellate court showed that respondents without ascertaining the duration of marriage and wear and tear of dowry articles---Finding of Family Court was not only erroneous but also against the law as a bare perusal exhibit would show that most of items were of daily use and consumed with passage of time---Without any cogent reason respondent had been held entitled to recovery of gold ornaments despite the fact that she had failed to prove that when she was deserted by petitioner, gold ornaments were snatched from her or she was given those ornaments at the time of her marriage---Courts below erred in law by not considering the duration of marriage, the nature of dowry articles and its wear and tear---Appellate court without any proof of respondent (wife) had entitled her to gold ornaments---Impugned judgments and decrees passed by both learned Courts to the extent of recovery of dowry articles and gold ornaments were modified accordingly---As regards the alternate value of dowry articles, since most of articles were of daily use and were consumed due to duration of marriage which lasted for about 5 years decree was modified---As regards of gold ornaments the judgment and decree passed by appellate Court was set aside---Petition was allowed.

Malik Matee Ullah for Petitioner.

Mushtaq Ahmed Dhoon for Respondents.

YLR 2022 LAHORE HIGH COURT LAHORE 2174 #

2022 Y L R 2174

[Lahore]

Before Ch. Muhammad Iqbal, J

ABDUL GHAFFAR---Petitioner

Versus

Hafiz ATTA UR REHMAN and another---Respondents

Civil Revision No. 36357 of 2021, heard on 4th January, 2021.

Civil Procedure Code (V of 1908)---

----O XVII, R. 3---Court may proceed notwithstanding either party fails to produce evidence, etc.---Party availing numerous opportunities including the last and final opportunity---Duty of Court--- Scope--- Petitioner/plaintiff despite availing opportunities failed to produce evidence---Trial Court dismissed the suit---Appeal of petitioner was also dismissed by Appellate court---Held that Court had the duty to regulate the proceedings of the case with the object to decide the lis expeditiously---If the court reached the conclusion that a party to lis was deliberately avoiding to lead evidence and maliciously prolonging the matter on different unreasonable pretext, then it was well within the jurisdiction of court under O. XVII, R. 3, C.P.C., to strike down the right of producing evidence of such a defaulting party---When Court had passed an order granting the last opportunity, it had not only passed a judicial order but also made a firm promise to the parties for not granting any further adjournment---Unflinching expectations of the litigant were attached with Court that it shall enforce its order in its true letter and spirit---Civil revision was dismissed.

Syed Tahir Hussain Mehmoodi and others v. Agha Syed Liaqat Ali and others 2014 SCMR 637; Rana Tanveer Khan v. Naseer-ud-Din and others 2015 SCMR 1401; Moon Enterprises CNG Station, Rawalpindi v. Sui Northern Gas Pipelines Limited through General Manager, Rawalpindi and another 2020 SCMR 300; Rai Muhammad Riaz (decd) through L.Rs. and others v. Ejaz Ahmed and others PLD 2021 SC 761 and Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469 rel.

Zulfiqar A. Shaikh for Petitioner.

Waqar Anjum for Respondents.

YLR 2022 LAHORE HIGH COURT LAHORE 2212 #

2022 Y L R 2212

[Lahore]

Before Jawad Hassan, J

MUHAMMAD SAEED and others---Petitioners

Versus

PROVINCE OF PUNJAB and others---Respondents

Writ Petition No. 388 of 2022, decided on 7th January, 2022.

Co-operative Societies Act (VII of 1925)---

----S.71---Election---"Limine control", doctrine of---Candidates/petitioner failed to disclose their occupation/profession in Column (3) of nomination papers---Nomination papers were rejected by Convenor Election Sub-Committee and their appeals and revisions were dismissed by Deputy Registrar Cooperative Societies and Secretary Cooperative Societies, respectively---Petitioners argued that they were retired employees and they were not engaged in any professional activity/business to be considered as their source of earning/ occupation hence it was not worth mentioning in their nomination papers---Held, that in all the impugned orders, respondents/authorities had observed that the petitioners had not provided mandatory information regarding their profession/occupation in the nomination papers---Each of the columns of nomination papers had to be filled either way which the petitioner had not filled---If the argument that petitioner were retired employees hence it was not important to fill occupational/ business column, was admitted as correct, even then the petitioners had the opportunity to mention the occupational/ business as "Retired Employees" in Column (3) of the nomination papers which was mandatory requirement on the basis of which their qualification/ disqualification could be determined---Constitutional petition was dismissed in limine.

Asif Saleem v. Chairman BOG University of Lahore and others PLD 2019 Lah. 407 rel.

Khalid Ishaq, Advocate Supreme Court for the Petitioners.

YLR 2022 LAHORE HIGH COURT LAHORE 2233 #

2022 Y L R 2233

[Lahore]

Before Malik Shahzad Ahmad Khan, A.C.J

MUHAMMAD RAMZAN---Petitioner

Versus

The STATE and 7 others---Respondents

Writ Petition No. 32866 of 2022, decided on 19th July, 2022.

Constitution of Pakistan---

----Art. 199--- Habeas corpus, writ of---Abduction of minor (son)---Proof---Petitioner alleged that respondents abducted his minor son and on a phone call someone demanded ransom for release---Validity---One stated eye-witness of occurrence was not traced out whereas the other stated eye-witness of occurrence denied claim of petitioner regarding abduction of his son---People of area of occurrence duly mentioned in inquiry report denied allegations of petitioner leveled in petition as no such occurrence had taken place in the area---Close relatives of petitioner also stated that neither petitioner was ever married nor there was any son of petitioner---As per police record petitioner was involved in sixteen criminal cases---Petitioner himself earlier filed eleven Constitutional petition before High Court and got filed eleven petitions before High Court through different persons---Petitioner was in the habit of filing frivolous petitions before High Court and he was a habitual criminal---High Court declined to interfere in the matter and imposed cost upon petitioner for filing false and frivolous petition on the basis of unture facts and forged documents, as the same resulted into wastage of precious time of Court and general public---Constitutional petition was dismissed in circumstances.

Javaid Iqbal Abbasi and Company v. Province of Punjab and 6 others 1996 SCMR 1433; Ahmed Nawaz alias Babal Khan Jakhrani v. The State and another PLD 1998 Kar. 180 and Muhammad Aslam v. District Returning Officer, Sheikhupura and 6 others 2007 CLC 188 ref.

Manzoor Hussain Khan for Petitioner.

Amjad Ali Chattha, Addl. Advocate-General with Raees, SI Police Station City Jhang and Maqsood, ASI Police Station Sanda, Lahore.

YLR 2022 LAHORE HIGH COURT LAHORE 2250 #

2022 Y L R 2250

[Lahore (Multan Bench)]

Before Mirza Viqas Rauf, J

MAHMOOD TEXTILE MILLS LIMITED through Director Technical and 13 others---Petitioners

Versus

OIL AND GAS REGULATORY AUTHORITY, (OGRA) through Registrar and 3 others---Respondents

Writ Petition No. 9565 of 2020, heard on 10th August, 2020.

Constitution of Pakistan---

----Arts. 10A & 25---Constitutional petition---Audi alteram partem---Gas tariff, determination process of---Redressal of grievance---Petitioners (manufacturers of textiles/allied products) alleged that they had approached the Oil and Gas Regulatory Authority (OGRA) but of no avail, they filed Constitutional petition (first petition) which was disposed of on 1.2.2017 by High Court directing OGRA to rehear the petitioner treating the copy of petition as review and decide the same within 6 weeks; and, subject to deposit of surety bonds by petitioners, continue to issue sui gas bills to the petitioners on basis of year previous to the year of controversy---OGRA dismissed such review petition on 06/07/2020---Petitioners contended that notice issued by the respondents (Authorities) was not properly delivered to the petitioners; that decision was made without hearing the petitioners; and that one opportunity of hearing should be provided before finalizing the matter---Held, that the OGRA would rehear the petitioners' grounds and decide the same afresh within 30 days---High Court also directed the petitioners to deposit Rs.01 million with the respondent within 7 days---Constitutional petition was dismissed accordingly.

Barrister Malik Kashif Rafiq Rajwana, Malik M. Tariq Rajwana and Malik M. Husnain Rajwana for Petitioners.

Rao Muhammad Iqbal, Legal Advisor, Rana Tahir Mahmood, Deputy Chief Billing Officer and Ahmed Shahid Khakwani, Deputy Chief Law Officer, SNGPL for Respondents.

YLR 2022 LAHORE HIGH COURT LAHORE 2259 #

2022 Y L R 2259

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi and Ch. Abdul Aziz, JJ

ADNAN PERVAIZ and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 349 and Murder Reference No. 25 of 2019, heard on 30th September, 2021.

(a) Criminal trial---

----Circumstantial evidence---Conviction---Scope---For securing conviction, the incriminating circumstances must be interwoven with each other so as to make an unbroken chain, the one part of which must touch the corpse and other end the neck of accused---Each circumstance of such chain must be comprising upon an impeccable event and should not be inadmissible in evidence.

Laxman Naik v. State of Orisa AIR 1995 SC 1387 rel.

(b) Criminal trial---

----Judicial confession--- Scope--- Prime consideration for the admissibility of a judicial confession is its voluntary nature and secondly the truth it contains.

Ch. Muhammad Yaqoob and others v. The State 1992 SCMR 1983 and Sh. Muhammad Amjad v. The State PLD 2003 SC 704 rel.

----Ss. 302, 201 & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, causing disappearance of evidence of offence or giving false information to screen offender, common intention---Appreciation of evidence---Confessional statement, recording of---Infirmities--- Scope--- Accused were charged for committing murder of the mother-in-law and sister-in-law of the complainant through infliction of successive sharp-edged traumas---Certain shortcomings, adversely reflecting upon the voluntary nature of the canvassed confession of accused were noticed---Firstly, it was observed that the confession of accused was recorded on the eighth day of his arrest and during that period he was twice remanded to police custody by the Judicial Magistrate---Question arising that if at all the confession was outcome of free will and voice of conscience, why it was not made on the previous two dates---Delay in making confession was generally considered a ground adversely effecting its voluntary nature---Secondly, accused was ordered to be lodged in judicial custody but after recording his confession under S.164, Cr.P.C.---Till recording of S.164, Cr.P.C. statement, no order for lodging accused in judicial custody was passed---Plain review of the proceedings unfolded that firstly the confession of accused was recorded and subsequent thereto order for lodging him in judicial lock-up was passed---Said fact was not a remote possibility that order to lodge the accused in jail was delayed so as to use it as hanging sword for ensuring to get a desired statement---

Unambiguously accused must be having lurking fear in his mind that he might be handed over to the police in case he did not make confession under S.164, Cr.P.C.---Such aspect alone was sufficient to expose the frailty of acclaimed voluntary nature of the confession under consideration---Thirdly, while recording the confession of accused neither any question about police torture was asked nor he was physically examined by the Judicial Magistrate---Said omission gained importance when seen in the context that accused took specific defence that he was coerced by torture to make such confession---Fourthly, it was evident from the proceedings as well as the deposition of Judicial Magistrate that the accused was not even asked about the date of his actual arrest and the time he had spent in the police custody---Said questions were essentially required to be asked in accordance with High Court (Lahore) Rules and Orders, Vol. III, Chap. 13 from the accused making confession under S. 164, Cr.P.C.---Failure of Judicial Magistrate to physically examine the accused was also a factor which lessened the acclaimed voluntary nature of the confession---Upon failure of Judicial Magistrate to enquire from the accused about physical torture---Circumstances established that the prosecution failed to discharge its burden to connect the accused persons with the crime beyond speck of any doubt---Appeal against conviction was allowed, in circumstances.

Arif Nawaz Khan and 3 others v. The State PLD 1991 FSC 53; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 and Muhammad Bilal and another v. The State 2021 SCMR 1039 rel.

(d) Criminal trial---

----Confession of co-accused---Scope---Confession of co-accused is generally regarded as weak type of incriminating circumstance and solely cannot be used for awarding conviction to another accused.

Bhuboni Sahu v. The King PLD 1949 PC 90 rel.

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

----Ss. 302, 201 & 34---Qatl-i-amd, causing disappearance of evidence of offence or giving false information to screen offender, common intention---Appreciation of evidence---Contradictions in the statements of witnesses--- Scope--- Accused were charged for committing murder of the mother-in-law and sister-in-law of the complainant through infliction of successive sharp-edged traumas---Admittedly, the contents of confession so made by accused were contradicted from the statements of other prosecution witnesses as well as from record---Firstly, it was observed that witnesses of wajtakar claimed to have witnessed both the accused persons near the well on the day of occurrence while having a blood stained Chhuri---In statement under S.164, Cr.P.C. accused was specific in saying that after making an exit from the house of deceased, he bisected himself from co-accused, thus apparently there was no occasion for said two witnesses to have seen them together in altogether different vicinity---Secondly, accused stated nothing in his confession about burning of blood stained clothes---Even otherwise, though as per prosecution case, co-accused got recovered half burnt blood stained clothes but those were never forwarded to Forensic Science Agency for tracing the blood stains and ascertaining their origin---Said fact was even candidly conceded by Investigating Officer his cross-examination--- Thirdly, it was noticed that S.164, Cr.P.C. statement of accused was recorded but nothing as such was mentioned by Investigating Officer in the case diary of that day---Fourthly, it was noticed that though the accused persons were nominated in the case on the very first day of its registration through the supplementary statement of complainant but still Call Data Record of 14-mobile phone numbers was requisitioned by Investigating Officer through written application---Question would arise that if at all veil was lifted from the identity of the actual culprits then why Call Data Record of those 14-mobile phones was procured---Things got more complex for the prosecution when seen in the context that Investigating Officer admitted that on the day of occurrence deceased through Call Data Record of her mobile phone was found in contact through four calls but no effort was made to ascertain the identity of that person---Fifthly, Investigating Officer also admitted unambiguously that on the day of occurrence the presence of co-accused through his Call Data Record was not found in the village, where the homicide incident occurred---Sixthly, the story of crime put forth in the confession of accused appeared to be self-contradictory in nature---Moreover, it emerged from S.164, Cr.P.C. statement that co-accused tried to engage accused as hired assassin and though accused went to the crime scene but claimed to have done so under the fear of co-accused---Last, motive behind the crime was canvassed as refusal of deceased to tie matrimonial knot with co-accused which irked him---Regarding that motive, no evidence whatsoever was led either during investigation or at trial stage, thus it remained unproved---All the said factors left the confession of accused as uncorroborated, thus it was forced to hold that prosecution failed to prove that statement under S.164, Cr.P.C. contained nothing but truth---Circumstances established that the prosecution failed to discharge its burden to connect the accused persons with the crime beyond speck of any doubt---Appeal against conviction was allowed, in circumstances.

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

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 rel.

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

----Ss. 302, 201 & 34---Qanun-e-Shahadat (10 of 1984), Arts. 39 & 40---Qatl-i-amd, causing disappearance of evidence of offence or giving false information to screen offender, common intention---Appreciation of evidence---Admission and confession made in the custody of police---Scope---Accused were charged for committing murder of the mother-in-law and sister-in-law of the complainant through infliction of successive sharp-edged traumas---As per prosecution case, both the accused persons led the police and witnesses to the place of homicide and admitted their guilt---Said aspect was canvassed as a strong circumstance, corroborating the judicial confession of accused and its admissibility was urged under Art. 40 of Qanun-e-Shahadat, 1984---Confession/ admission of guilt made in the custody of a Police Officer was inadmissible under Art. 39 of Qanun-e-Shahadat, 1984---Article 40 of Qanun-e-Shahadat, 1984, was an exception and it made admissible a fact the information of which was given by an accused even in the police custody---Exception so postulated in Art. 40 was subject to limitation that the information so furnished by an accused in the police custody led to discovery of a fact which was perceivable through human senses and previously not within the knowledge of anyone---Any other interpretation of Art. 40 was fallacious and incorrect owing to lack of legal knowledge and was to be discarded---Admittedly, in pursuance of alleged disclosure and pointation of the accused persons no fact surfaced on record, not within the knowledge of police and witnesses---Circumstances established that the prosecution failed to discharge its burden to connect the accused persons with the crime beyond speck of any doubt---Appeal against conviction was allowed, in circumstances.

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

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

Hamid Rasheed Gondal for Appellant.

Ch. Yasir Mehmood Chatha for the Complainant.

Sajjad Hussain Bhatti, D.P.G. with Muhammad Anwar SI for the State.

YLR 2022 LAHORE HIGH COURT LAHORE 2293 #

2022 Y L R 2293

[Lahore]

Before Shahid Bilal Hassan, J

AFZAL AHMAD BUTTAR and another---Petitioners

Versus

MUHAMMAD YOUSAF---Respondent

Civil Revision No. 520 of 2022, decided on 11th January, 2022.

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

----S.29---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Property of minor---Guardian Court, permission non-seeking of---Concurrent findings of two Courts below---Petitioners/vendees entered into agreement executed on behalf of respondent/minor through his mother regarding property owned by him---Trial Court and Lower Appellate Court dismissed suit and appeal filed by petitioners/vendees---Validity---Agreement to sell was entered into by mother of minor without seeking prior permission of Guardian Court---Such agreement was void ab initio and did not create any legal rights or liabilities in favour of petitioners/vendees and could not be enforced against respondent/minor---Agreement to sell executed by mother of respondent/minor in favour of petitioners/ vendees was void and its performance could not be sought with the aid of Court by filing civil suit---Concurrent findings of facts recorded by two Courts below did not suffer from any misreading and non-reading of evidence---High Court in exercise of revisional jurisdiction under S.115, C.P.C. could not interfere in such findings howsoever erroneous those might be---High Court declined to interfere in judgments and decrees passed by two Courts below who had rightly exercised vested jurisdiction and did not commit any illegality and irregularity while passing the same---Revision was dismissed, in circumstances.

Muhammad Ali through L.Rs. and another v. Manzoor Ahmed 2008 SCMR 1031; 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 rel.

YLR 2022 LAHORE HIGH COURT LAHORE 2323 #

2022 Y L R 2323

[Lahore]

Before Malik Shahzad Ahmad Khan, J

MUHAMMAD AKRAM---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 43133-B of 2021, decided on 15th July, 2021.

Criminal Procedure Code (V of 1898)---

---S. 497---Penal Code (XLV of 1860), Ss. 376 & 337-J---Rape---Causing hurt by means of a poison---Bail, grant of---Case of zina with consent---Failure to recover utensil containing intoxicating material--- Further inquiry--- Scope---Prosecution case was that the complainant was called by accused on the pretext of giving her a job at a beauty parlor; that the accused along with co-accused took the complainant at an unknown place where some intoxicating material was administered to her through a bottle and that the accused persons thereafter committed rape with the complainant turn by turn---Complainant was admittedly a married lady therefore medico legal report showing her hymen to be old ruptured was inconsequential---True, DNA test report revealed that accused persons could not be excluded being contributors towards the semen detected on the vaginal swabs of the complainant but point for determination before the High Court was as to whether it was a case of rape as alleged by the complainant or it was a case of zina with consent, which was bailable offence---No allegation of forcible abduction was levelled neither was there any medico legal report in support of the allegation of intoxicating material being administered to the complainant nor the bottle containing intoxicating material was recovered---Allegation of rape levelled against the accused required further probe---Co-accused was released on bail by the Sessions Judge on the exonerating statement of the complainant---Case of accused was at par with the case of co-accused---Petition for grant of bail was allowed, in circumstances.

Kaleem Ullah v. The State and others 2017 SCMR 19 and Jamshaid Asmat alias Sheedu v. The State and others 2011 SCMR 1405 ref.

Rai Ashfaq Ahmad Kharal for Petitioner.

Ch. Muhammad Ishaq, Addl. Prosecutor General for the State.

Malik Zulfiqar Ali for the Complainant.

YLR 2022 LAHORE HIGH COURT LAHORE 2330 #

2022 Y L R 2330

[Lahore (Multan Bench)]

Before Anwaar Hussain, J

Khawaja TAHIR MAHMOOD---Appellant

Versus

PUNJAB HOUSING AND TOWN PLANNING AGENCY through Assistant Director and 2 others---Respondents

Writ Petition No. 2579 of 2020, decided on 4th March, 2022.

Punjab Housing and Town Planning Agency Ordinance (LXXVIII of 2002)---

----S.4---Commercialization fee, notice for--- Legality--- Petitioner assailed issuance of demand notice by the respondents (Town Planning and Housing Agency) while claiming that he had made an application in the year 2018; that he had also deposited the commercialization fee; that the respondents were not applying the valuation table applicable on the date of application and that they were raising additional demand of commercialization fee---During the course of arguments consensus had developed that the application of the petitioner would be taken by the Deputy Director of the department and would be dealt with strictly in accordance with law---Impugned demand notice was set aside and the respondent - Agency was directed to decide the application of the petitioner.

Malik Muhammad Tariq Rajwana and Malik Asif Rafique Rajwana for Petitioner.

YLR 2022 LAHORE HIGH COURT LAHORE 2354 #

2022 Y L R 2354

[Lahore (Bahawalpur Bench)]

Before Abid Hussain Chattha, J

EJAZ AHMED---Appellant

Versus

ABDUL HAMEED---Respondent

R.F.A. No. 7 of 2021/BWP, heard on 1st November, 2021.

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

----O. XXXVII, Rr. 1 & 2 & O, VII, R. 16---Suit for recovery---Article 76 of Qanun-e-Shahadat, 1984---- Departure from pleadings---Contradictory dates in respect of lost cheque---Respondent/ plaintiff filed suit for recovery against defendant/appellant on the basis of a cheque, which was decreed by Trial Court---Held, that respondent/plaintiff was required to prove as to whether he was entitled to recover certain amount from appellant/defendant on the basis of cheque and evidence of respondent was materially discrepant and inconsistent on several counts---Due date of cheque was 07.05.2012 and in the plaint respondent/ plaintiff categorically stated that on 02.05.2012 he was going to encash the cheque but it was lost on the way and it remained unexplainable that as to why the cheque which was encashable on 07.05.2012 was being taken for encashment on 02.05.2012---Perusal of police report and statements of respondents during his examination and cross-examination showed four different dates of the loss of cheque---Respondent in his cross-examination also stated that he came to know about the lost cheque on the day of its encashment---Respondent failed to prove his case as the stance put forth by him was hit by the legal maxim "secundum allegata et probata" (no one could be allowed to prove a fact which was not pleaded under the law ) and "allegans contraria non est audiendus" (a person alleging contradictory facts should not be heard)---Appeal was allowed and suit for recovery was dismissed.

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

----O. XXXVII, Rr. 1 & 2 & O. VII, R. 16----Recovery suit for lost negotiable instrument---Scope---If a suit was brought on loss of negotiable instrument, it was mandatory and incumbent upon plaintiff to firstly prove that the instrument was lost and then claim indemnity.

----Art. 76(c)---Civil Procedure Code (V of 1908), O. XXXVII, Rr. 1 & 2 & O. VII, R. 16---Cases in which secondary evidence relating to document may be given---Recovery suit for lost negotiable instrument---Onus to prove loss of negotiable instrument a cheque----Respondent was under heavy onus and obligation to prove that the cheque had not been lost due to his own default or negligence---Trial Court at the time of deciding the application of respondent for permission to lead secondary evidence neither considered the material fact of loss of the cheque, qua availability of the second cheque referred in police report by respondent which was claimed by appellant/defendant to have been issued to him which remained in his possession and was produced in original---Such fact completely destroyed the story of respondent---Fact regarding loss of original cheque was required to be proved before leading secondary evidence and if it was not done so then even if secondary evidence was produced, it would become valueless, vitiating all the proceedings built on such secondary evidence---Court had to first consider and resolve the question as to whether loss of the cheque had been proved and if it found so proved, then it was to move on to examine worth of secondary evidence---Respondent could not prove the loss of cheque, hence the secondary evidence had lost its meaning and evidentiary worth---No explanation was given to the effect that if cheque was lost, why the suit was brought on the last day of limitation---Appellant in his written statement as well as his deposition had categorically stated that cheque was returned to him by respondent which was destroyed by him after appellant made the entire payment to respondent and the second cheque given to him by respondent as guarantee cheque was still available with him---Such portion of deposition was not rebutted or questioned at all in cross-examination, hence evidence tendered by appellant would be deemed to have been admitted---Appeal was allowed and suit for recovery filed by respondent was dismissed.

Messrs Expeditor International Pakistan (Pvt.) Ltd. v. Messrs Sitara Textile Industries Ltd. and 2 others 2018 CLC 994 rel.

Syed Areeb Abdul Khafiz Bukhari for Appellant.

Ch. Muhammad Nawaz for Respondents.

YLR 2022 LAHORE HIGH COURT LAHORE 2383 #

2022 Y L R 2383

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

Mst. NOOR ELAHI---Petitioner

Versus

MUHAMMAD ABBAS and others---Respondents

Civil Revision No. 203 of 2008, heard on 11th February, 2021.

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

----Arts. 30, 49, 59, 79, 117 & 118---Punjab Land Revenue Act (XVII of 1967), S. 42---Suit for declaration---Sale mutation--- Thumb-impression, denial of--- Petitioner / plaintiff (allegedly folk/illiterate lady) claimed that she leased out the suit land to respondents but they managed to transfer the same in their favour vide oral sale mutation; that neither she sold nor received any consideration---Respondents/defendants contested the suit on ground that petitioner along with her husband and attesting witnesses appeared before Revenue Officer who recorded their statements and petitioner affixed her thumb-impressions and sanctioned the subject mutation---Trial Court decreed the suit but Appellate Court reversed the judgment of Trial Court---Validity---Mutation proceedings were initiated primarily for fiscal purposes to collect the land revenue and was only meant for maintaining the record---Such proceedings were conducted summarily which could not be considered as judicial proceedings to determine right/title qua immovable property---Petitioner's witnesses including her husband explicitly supported her version and one of the witnesses stated that Lumberdar prior to his death told him that Patwari had managed his thumb-impression while cheating him and that petitioner according to his knowledge never sold out the subject land---Mutation contained sale transaction and as such being the document pertaining to financial liability required to be strictly proved---Examination of Tehsildar out of its signatories by the beneficiary was not enough to meet with the legal requirement---Marginal witnesses appeared as witnesses and created serious doubts in veracity of disputed mutation--- Father of respondents/ beneficiaries while appearing as witness stated during cross-examination that petitioner/lady was about 15/16 years old when she was paid in 1981 consideration of currency notes valuing rupees 500/1000---Roznamcha Waqiati was not having recorded statement of its maker---Expert opined the similarity of thumb-impression but also endorsed that by putting another thumb-impression over the already existed thumb-mark available on the subject mutation, it was tried to be impaired, thus made the report doubt-ful---Suit was within time----Revision petition was allowed accordingly.

Islam-ud-Din through L.Rs and others v. Mst. Noor Jahan through L.Rs. and others 2016 SCMR 986 rel.

(b) Punjab Land Revenue Act (XVII of 1967)---

----Ss. 42 & 52---Although summary proceedings conducted by revenue officials were admissible under Art. 49 of Qanun-e-Shahadat, 1984 and some presumption was also attached thereto, but the same was always rebuttable.

----S. 42---Mutation per se was not deed of title and the party relying upon its entries was always bound to prove the transaction reflected therein.

Gangabai and others v. Fakirgowda Somaypagowda Desai and others AIR 1930 PC 93; Durga Prasad and another v. Ghanshiam Das and others AIR (35) 1948 PC 210; Muhammad and others v. Sardul PLD 1965 Lah. 472; Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR 1832 and M. Malik v. Mst. Razia PLD 1988 Lah. 45 rel.

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

----Arts. 117 &118---Beneficiary to prove the case---Sale mutation recorded in favourof alleged purchaser---Sale and receiving of consideration was denied by the owner---Was to be established on record that sale price had been passed on to the vendor and in default thereof, sale could not be considered to have completed---Was required to lead solid evidence that the petitioner had sold out the suit land and received its price as a whole or in part.

Ali Muhammad and others v. Chief Settlement and Rehabilitation Commissioner and others 1984 SCMR 94 and Tooti Gul and 2 others v. Irfanuddin 1996 SCMR 1386 rel.

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

----S. 49---Roznamzha Waqiati---Bar against conferring title---Roznamcha Waqiati was not per se admissible and it was not a document to confer title---Exhibition of document and proof of its contents were two different aspects and the latter was more relevant and important.

Zulfiqar and others v. Shahadat Khan PLD 2007 SC 582 rel.

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

----Art. 30---Sale mutation---Admission before Revenue Officer as to receipt of price---Scope---Mere admission as to receipt of sale price before Attesting Officer could not be taken as conclusive proof.

Muhammad Shafi and others v. Allah Dad Khan PLD 1986 SC 519 rel.

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

----Art. 59---Thumb-impression expert, report of---Evidential value---Opinion of expert was always a weak type of evidence and was not that of conclusive nature---Expert's testimony recorded in the case in hand could not be treated as substitute of available direct evidence---Court could not base findings merely on expert's opinion.

Syed Muhammad Umer Shah v. Bashir Ahmed 2004 SCMR 1859 and Mst. Saadat Sultan and others v. Muhammad Zahur Khan and others 2006 SCMR 193 rel.

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

----O. VII, R. 11---Suit for declaration without seeking relief of possession---Maintainability---Where plaint explained that the suit land was under lease and that the same was mutated on basis of fraud, simple suit for declaration was maintainable.

(i) Administration of justice---

----Technicalities---Suit could not be defeated merely due to its bad form---Court, in aid of justice, vests with unfettered powers to provide, mould and grant adequate relief even if not claimed through the contents of the plaint.

Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678; Ch. Akbar Ali v. Secretary, Ministry of Defence, Rawalpindi and another 1991 SCMR 2114; Mst. Arshan Bi through Mst. Fatima Bi and others v. Maula Bakhsh through Mst. Ghulam Safoor and others 2003 SCMR 318; Altaf Hussain alias Mushtaq Ahmed v. Muhammad Din and others 2010 CLC 1646; Sardara and Allah Ditta through legal heirs and others v. Mst. Bashir Begum and another PLD 2016 Lah. 587 and Muhammad Riaz and others v. Qaim Ali and others PLD 2019 Lah. 97 rel.

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

----Art. 120---Mutation challenged after 11 years of sanction---Limitation---Document procured by playing fraud, could be challenged at any stage of time.

(k) Punjab Land Revenue Act (XVII of 1967)---

----S. 42---Cause of action---Every new entry in the revenue record would give fresh cause of action to the plaintiff and adverse entries therein even if were allowed to remain unchallenged did not necessarily extinguish the right of the party against whom such entry was renewed.

Wali and 10 others v. Akbar and 5 others 1995 SCMR 284 and Ghulam Farid and another v. Sher Rehman through L.Rs. 2016 SCMR 862 rel.

Miss Gulzar Butt for Petitioner.

Sajid Ali for Respondents.

YLR 2022 LAHORE HIGH COURT LAHORE 2399 #

2022 Y L R 2399

[Lahore]

Before Shahid Waheed and Ch. Muhammad Iqbal, JJ

MUHAMMAD ASHRAF MALIK---Appellant

Versus

Mian MUHAMMAD NAWAZ SHARIF and another---Respondents

R.F.A. No. 75794 of 2021, decided on 6th December, 2021.

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

----S. 17---Suit for specific performance was filed by the appellant alleging that he purchased the land owned by the respondent through other respondent being the attorney/agent of respondent; that the appellant had paid amount of Rs.75,000,000/-to respondent through crossed cheques; that possession was delivered to the appellant but the sale deed was not executed in his favour---Ex parte proceedings were initiated by the Trial Court and the petitioner's suit was concurrently dismissed---Validity---Record showed that neither the details of the power of attorney issued by one respondent to another were given in the plaint/agreement to sell, nor the same was made available to the original Court so that it could examine the same---No explanation was made for such omission---Power of attorney was a compulsorily registerable document but the perusal of the exhibited document indicated that the same was not registered---Plaintiff had failed to establish the privity of respondent with the agreement---Appeal was dismissed accordingly.

Bisheshar Lal v. Mt. Bhuri AIR 1920 Lah. 20; Ghulam Mohammad v. Sarkhru AIR 1934 Lah. 970 and Wadhawa Singh v. Kunj Lal AIR 1938 Lah. 497 rel.

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

---S. 17---Power of attorney was a written authorization by virtue of which the principal would assign to a person as his agent and confer upon him the authority to perform specified acts on his behalf---Primary purpose/object of such an agency is that the agent has to act in the name of his principal and the principal also purported to ratify all the acts/deeds of his agent done by him under the authority conferred through the instrument---Such document has to be compulsorily registered.

YLR 2022 LAHORE HIGH COURT LAHORE 2415 #

2022 Y L R 2415

[Lahore (Bahawalpur Bench)]

Before Sardar Ahmed Naeem and Muhammad Waheed Khan, JJ

NAEEM AKHTAR---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.280-J and Murder Reference No. 39 of 2016, heard on 3rd February, 2021.

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

----Ss. 302(b), 324, 337-F(iii), 337-F(v) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, ghayr-jaifah, hashimah, common intention---Appreciation of evidence---Sentence, reduction in---FIR was lodged with promptitude--- Scope--- Accused was charged that he along with co-accused persons while armed with deadly weapons committed murder of his wife/sister of the complainant and caused injuries to his daughter by firing on account of some disputes over Rishta of her daughter---Record showed that the occurrence had taken place at 09:45 p.m., in the month of May---Distance between the place of occurrence and Police Station was nine kilometres and the FIR was registered on the same day at 11:05 p.m. which excluded the possibility of any deliberation or consultation---Circumstances established that the prosecution had proved its case against the accused, however, motive was not proved, thus, death penalty awarded to the accused was not proper and the same was reduced to imprisonment for life, which would meet the ends of justice---Appeal against conviction was dismissed with said modification in sentence.

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

----Ss. 302(b), 324, 337-F(iii), 337-F(v) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, ghayr-jaifah, hashimah, common intention---Appreciation of evidence---Sentence, reduction in---Accused was charged that he along with co-accused persons while armed with deadly weapons committed murder of his wife/sister of the complainant and caused injuries to his daughter by firing on account of some disputes over Rishta of her---Record showed that the accused was nominated as the principal offender---All the injuries sustained by the deceased as well as the injured were attributed to the accused---Accused was husband of the deceased and father of the injured witness---Place of occurrence was their house---Complainant and the other witnesses were closely related to each other---On the hue and cry of the deceased/injured, the complainant and witnesses rushed towards the place of occurrence and witnessed the episode---No grudge or grouse was attributed to any of the witnesses for false implication of the accused---Injured witness had got stamp of injuries on her person and deposed against her real father---Ocular account was furnished by the eye/injured witness in a straightforward manner---Relationship of the witnesses with the deceased per-se was no ground to discard their confidence inspiring testimony---Presence of witnesses at the spot was established---Prosecution case had been proved by ocular account narrated by the complainant and the eye/injured witnesses---Ocular account had been further corroborated by the medical evidence as well as recovery of the weapon of offence---Circumstances established that the prosecution had proved its case against the accused---Motive was not proved, thus, death penalty awarded to the accused was not proper and the same was reduced to imprisonment for life, which would meet the ends of justice---Appeal against conviction was dismissed with said modification in sentence.

----Ss. 302(b), 324, 337-F(iii), 337-F(v) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, ghayr-jaifah, hashimah, common intention---Appreciation of evidence---Sentence, reduction in---Weapon of offence was recovered on the pointation of accused---Reliance---Scope---Accused was charged that he along with his co-accused persons while armed with deadly weapons committed murder of his wife/sister of the complainant and caused injuries to his daughter by firing on account of some disputes over Rishta of her daughter---Accused led to the recovery of 30 calibre pistol, which was found wedded with the cases of cartridges secured by the Investigating Officer from the crime scene as suggested by the report of Forensic Science Agency, thus, plea of the accused that the deceased was in the clutches of the complainant and, therefore, they falsely implicated the accused was not plausible---Circumstances established that the prosecution had proved its case against the accused---Motive was not proved, thus, death penalty awarded to the accused was not proper and the same was reduced to imprisonment for life, which would meet the ends of justice---Appeal against conviction was dismissed with said modification in sentence.

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

----Ss. 302(b), 324, 337-F(iii), 337-F(v) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, ghayr-jaifah, hashimah, common intention---Appreciation of evidence---Sentence, reduction in---Motive was not proved---Scope---Accused was charged that he along with his co-accused persons while armed with deadly weapons committed murder of his wife/sister of the complainant and caused injuries to his daughter by firing on account of some disputes over Rishta of her daughter---Motive alleged by the complainant was that there was dispute regarding Rishta (marriage proposal) between the spouses, however, the available material on record did not suggest for whom the Rishta was demanded and if it was Rishta of injured witness or her elder sister---Motive had been described by the eye-witnesses i.e. the dispute of Rishtas between the deceased and the accused as well as the acquitted co-accused---Eye-witnesses were sitting in the courtyard of their house and thus, they neither could see nor overhear that the quarrel, if any, took place between the spouses was on account of Rishta of the injured---Injured witness also deposed about the motive but her statement did not reflect the details of those Rishtas, thus, the motive alleged by the prosecution was not proved against the accused---Circumstances established that the prosecution had proved its case against the accused, however, death penalty awarded to the accused was not proper and the same was reduced to imprisonment for life, which would meet the ends of justice---Appeal against conviction was dismissed with said modification in sentence.

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

Farooq Haider Malik, Defence Counsel at State expense for Appellant.

Najeeb Ullah Jatoi, Deputy Prosecutor General for the State.

Muhammad Shahid Khan for the Complainant.

YLR 2022 LAHORE HIGH COURT LAHORE 2450 #

2022 Y L R 2450

[Lahore]

Before Shahid Bilal Hassan and Masud Abid Naqvi, JJ

EFU LIFE INSURANCE LTD.---Appellant

Versus

Mst. RUKHSANA MANZOOR---Respondent

Insurance Appeal No. 65704 of 2019, heard on 15th September, 2021.

(a) Administration of justice---

----Determination of question of law---Scope---Question of law even if not taken or raised by the party can be considered by the courts themselves at appellate and revisional stage.

Lahore Development Authority v. Mst. Sharifan Bibi and another PLD 2010 SC 705 and Sardar Anwar Ali Khan and 10 others v. Sardar Baqir Ali through Legal Heirs and 4 others 1992 SCMR 2435 ref.

United Bank Limited and others v. Noor-Un-Nisa and others 2015 SCMR 380 rel.

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

----S. 3---Dismissal of suits, etc. instituted after period of limitation---Scope---Court seized of the matter first has to determine whether it enjoys the jurisdiction to entertain the subject matter and whether the lis has been instituted or filed within limitation prescribed under law and then to proceed with the matter further.

Rana Rizwan Hussain for Appellant.

Faizan Saleem for Respondent.

YLR 2022 LAHORE HIGH COURT LAHORE 2466 #

2022 Y L R 2466

[Lahore]

Before Asjad Javaid Ghural. J

NAWAZ AHMAD and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 259085 of 2018 and Criminal Revision No.3206 of 2019, heard on 29th June, 2021.

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

----Ss. 302(b), 324, 337-A(i), 337-L(2) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, hurt, common intention---Appreciation of evidence---Benefit of doubt--- Presence of eyewitnesses at the spot was doubtful---Scope--- Accused were charged for committing murder of the brother of the complainant and also injuring the complainant---Complainant/brother and brother-in-law of the deceased furnished the ocular account---Incident had taken place at a taxi stand, which, admittedly, was not the place the residence of the acclaimed eye-witnesses--- Incumbent upon eye-witnesses to furnish any solid reason in order to establish their presence at the spot at the relevant time---Testimony of complainant had much significance, who after narrating entire episode of the incident with minute detail of role of each assailants stated that on their hue and cry many people including the eye-witnesses attracted at the spot---If that part of statement of the complainant was taken as a true version, it depicted another picture that the said witness attracted at the spot when the occurrence was already over---Said witness was brother-in-law of the deceased as well as the complainant and in such a close relationship, it did not appeal to ordinary prudence and led to presume that had he been present there at the relevant time, he would have received any injury---In the attending circumstances, it seemed to be proved that the said witness was not present at the spot at the relevant time and he was planted subsequently in order to strengthen the prosecution story, being close relative of the deceased as well as the complainant---So far as testimony of complainant was concerned, no doubt he claimed to have sustained injuries at the spot, however, stamp of injuries on his person was not sufficient to take his testimony as a gospel truth---Complainant claimed to have sustained injuries at the hands of co-accused (since acquitted) but he could not establish the same in his deposition before the Trial Court and in consequence thereof, Trial Court acquitted said co-accused by disbelieving testimony of the eye-witnesses including the injured witness to that extent---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

(b) Criminal trial---

----Witness--- Statement of injured witness--- Scope--- Testimony of an injured witness could not be believed when he failed to establish the injuries on his own person against any of the accused.

Ishtiaq Hussain and another v. The State and another 2021 SCMR 15 rel.

----Ss. 302(b), 324, 337-A(i), 337-L(2) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, hurt, common intention---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence--- Contradictions---Accused were charged for committing murder of the brother of the complainant and also injuring the complainant---Eye-witnesses stated that first injury at the head of the deceased was inflicted by acquitted accused, due to which blood started oozing and thereafter, the present accused inflicted injuries at the head and other parts of the deceased's body---Eye-witness stated that the injury allegedly attributed to said acquitted accused was not declared as a cause of death by the doctor during his autopsy---Accused to whom the fatal injury was assigned by the eye-witnesses had been acquitted of the charge through the impugned judgment, which clearly showed that both the acclaimed eye-witnesses made false statement against the acquitted accused---If some part of their testimony was found false, the same would be discarded as a whole---Present accused were assigned the role of inflicting Sota blows at the head of the deceased---Similarly, acquitted co-accused was also specifically assigned the role of inflicting iron rod blow at the same locale of the deceased---Medical Officer who examined the deceased in injured condition and observed four injuries at his person including two injuries at the head---Medical Officer who held autopsy on the dead body of deceased observed eight injuries at his person---One injury was found fatal wherein piece of bone was separated from the skull top to left side---Furthermore hematoma and clotted blood was observed on the left side of brain elevating parital, temporal, frontal bonds damaging underline brain---From the medical evidence, it was clear that both the injuries at the head of deceased were of almost at the same locale and there was only a difference of exerting force for causing such injuries, showing that both said injuries were caused by the same person with the same kind of weapon---Medical evidence lent no support to the ocular account---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Notice to Police Constable Khizar Hayat son of Hadait Ullah on account of his false statement PLD 2019 SC 527 rel.

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

----Ss. 302(b), 324, 337-A(i), 337-L(2) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, hurt, common intention--- Appreciation of evidence---Eye-witnesses, evidence of---Corroboration---Accused were charged for committing murder of the brother of the complainant and also injuring the complainant---Co-accused was equally assigned the role of inflicting iron rod blow at the head of deceased but he had already been acquitted of the charge by the trial court by disbelieving the prosecution evidence to his extent and as such, the same could not be believed to the extent of the present accused, having exactly identical role---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Shahbaz v. The State 2016 SCMR 1763; Tariq v. The State and others 2017 SCMR 1672 and Imtiaz alias Taj v. The State and others 2018 SCMR 344 rel.

(e) Criminal trial---

----Ocular account---Scope---If the ocular account is disbelieved, rest of the evidence, howsoever strong might be, being corroboratory in nature, could not 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 Ahsan Bhoon and Muhammad Imran Sulehria for Appellants.

Rashid Gull for the Complainant.

Ms. Raheela Shahid, Deputy District Public Prosecutor for the State.

YLR 2022 LAHORE HIGH COURT LAHORE 2479 #

2022 Y L R 2479

[Lahore]

Before Ch. Muhammad Iqbal, J

MUHAMMAD ASLAM and others---Petitioners

Versus

MUHAMMAD YOUSAF and others---Respondents

Civil Revision No. 17583 of 2019, heard on 12th October, 2021.

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

----O. XXXIX, Rr. 1 & 2---Interim injunction--- Necessary ingredients---Petitioners/plaintiffs filed a suit for declaration, possession and cancellation of documents along with application under O. XXXIX, Rr. 1 & 2, C.P.C.---Respondents/defendants filed contesting written statement as well as reply of application---Trial Court accepted the prayer of petitioners/plaintiffs to the extent of restraining respondents/ defendants from alienating the suit property any further--Respondents/ defendants filed an appeal which was allowed by Appellate Court and dismissed the application----Validity---Petitioners/ plaintiffs could not make out a prima facie good arguable case in their favour, as such , balance of inconvenience and irreparable loss also did not tilt in their favour----Necessary ingredients for grant of temporary injunction under O. XXXIX, Rr. 1 & 2, C.P.C. were existence of prima facie arguable case, balance of convenience and irreparable loss or injury---Civil revision was dismissed.

Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another PLD 1970 SC 180 and Amtul Batool and another v. Qamar Sultana PLD 1980 Lah. 647 rel.

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

----S. 52---Transfer of property pending suit relating thereto----Lis pendens, principle of---Scope Prima facie respondents/defendants were shown owners of the suit property and if the respondents/defendants alienated suit property during the pendency of suit that transaction would be subject to the principle of lis pendens, which safeguards the rights of petitioners/ plaintiffs---If any alienation of the property made pendente lite was validated as to effects the rights of opponent , it would start endless litigation---- Civil revision was dismissed.

Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187 rel.

----Ss. 96,100 & O. XLI, R.33---Conflict of Judgments of Trial Court and appellate court---In the event of conflict of judgments, findings of appellate Court were to be preferred and respected,unless it was shown from the record that such findings were not supported by evidence.

Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398 rel.

Muhammad Javed Chaudhary for Petitioners.

Munir Hussain Bhatti for Respondents.

YLR 2022 LAHORE HIGH COURT LAHORE 2491 #

2022 Y L R 2491

[Lahore]

Before Asim Hafeez, J

ZIA-UL-HAQ and another---Petitioners

Versus

MUHAMMAD ISMAIL and 13 others---Respondents

Civil Revision No. 10864 of 2022, decided on 2nd March, 2022.

Partition Act (IV of 1893)---

----S.3---Specific Relief Act (I of 1877), Ss. 42 & 54---Change in nature of property---Maintainability of injunction---Respondents filed suit for partition against petitioners and other co-sharers---Petitioners during pendency of partition suits alienated their shares through sale deed with specific details---Respondents filed suit for declaration and permanent injunction--- Trial Court rejected the plaint of respondents--- Respondents filed appeal before Appellant Court---Appellant Court allowed the appeal and set aside the decree for rejection of plaint and matter was remanded to Trial Court---Held, that critical issue was the change in the nature of the property and injunction sought to stall any such attempt, in the garb of construction- Suit for declaration was not maintainable inter se co-owners---No restriction could be imposed on the right of one of the co-sharers to sell his share---Co-sharer in possession of joint property cannot change the nature of property in his possession unless partition takes place by metes and bounds---No illegality was committed by Appellate Court in reversal of decision of rejection of plaint---Civil revision was dismissed.

Ali Gohar Khan v. Sher Ayaz and others 1989 SCMR 130 rel.

Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC (Pak.) 9; Abdur Rehman v. Muhammad Siddique through L.Rs. 2006 MLD 442; Syed Agha Hussain Shah v. Muhammad Sadiq and others 2006 MLD 1008; Mst. Roshan Ara Begum and 8 others v. Muhammad Banaras and another 2016 YLR 1300; Mst. Bibi Jan and another v. Mir Zaman and 19 others 2003 CLC 909 and Ashiq Hussain v. Prof. Muhammad Aslam and 9 others 2004 MLD 1844 distinguished.

Peshawar High Court

YLR 2022 PESHAWAR HIGH COURT 68 #

2022 Y L R 68

[Peshawar (Bannu Bench)]

Before Sahibzada Asadullah, J

ABDUR REHMAN---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 308-B of 2019, decided on 4th February, 2021.

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

----Ss. 324 & 337-F(v)---Attempt to commit qatl-i-amd, ghayr-jaifah-hashimah---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Accused was charged for injuring the daughter of the complainant by firing---Motive for the occurrence was stated to be an altercation prior to the occurrence---Witnesses had contradicted each other on material aspects of the case---Injured witness stated that burst firing was made, whereas according to complainant the firing was sporadic---If it was accepted what the injured stated, then court was to believe that the accused after firing the initial rounds did not keep on firing and if the complainant was to be believed, then what a courage the lady had to walk towards the accused and for what purpose---Injured stated that after receiving firearm injury, the complainant without loss of time put her in a motorcar and left for the hospital, but her stance was contradicted by eye witness that after hitting his sister, he at once rushed towards his house while his father also came to the house---After 4/5 minutes they came out of their house and attended the injured---Injured stated otherwise that after sustaining injury she laid down on the ground and her father took her in his lap---Both the witnesses when were read together, it left no room to doubt that they fully contradicted each other---Circumstances established that the prosecution could not succeed in bring home guilt of the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 324 & 337-F(v)---Attempt to commit qatl-i-amd, ghayr-jaifah-hashimah---Appreciation of evidence---Benefit of doubt---Presence of witnesses at the spot was doubtful---Scope---Accused was charged for injuring the daughter of the complainant by firing---In the present case, impression could be gathered that eye-witness was not present at the stated time---Had he been present on the spot, he would have attended the injured instead of rushing to the house and attending the injured after 4/5 minutes of the occurrence---Said fact did not appeal to a prudent mind that a real father and real brother would leave their daughter and sister unattended by taking shelter in the house---Prosecution was still to answer that why eyewitness did not accompany the injured to the hospital along with his father and that why he did not verify the report---Investigating Officer visited the spot and on pointation of the complainant the site plan was prepared and nothing had been mentioned regarding presence of the eyewitness at the spot---Had eyewitness been present on the spot at the time of spot inspection, the Investigating Officer would have mentioned his name as well---Circumstances established that the prosecution could not succeed in bring home guilt of the accused---Appeal against conviction was allowed, in circumstances.

Basharat Ali v. Muhammad Safdar and another 2017 SCMR 1601 rel.

----Ss. 324 & 337-F(v)---Attempt to commit qatl-i-amd, ghayr-jaifah-hashimah---Appreciation of evidence---Benefit of doubt---Delay of one hour and five minutes in reporting the matter---Scope---Accused was charged for injuring the daughter of the complainant by firing---Record showed that the incident occurred at 06:25 p.m., whereas the matter was reported in the emergency room of Civil Hospital at 07:30 p.m. and the injured was examined by the doctor at 7:15 p.m.---Prosecution was to tell as to who accompanied the injured to the hospital and that what time the injured arrived to the hospital---Two of the witnesses confirmed that the injured reached the hospital at 6:30 p.m. but why the report was delayed till 7:30 p.m. and that how the injured was examined at 7:15 p.m.---Circumstances established that the prosecution could not succeed in bring home guilt of the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 324 & 337-F(v)---Attempt to commit qatl-i-amd, ghayr-jaifah-hashimah---Appreciation of evidence---Benefit of doubt---Recovery of crime empties from the spot---Reliance---Scope---Accused was charged for injuring the daughter of the complainant by firing---Investigating Officer visited the spot and collected five empties of 7.62 bore---Said empties were allegedly sent to the Forensic Science Laboratory to ascertain as to whether the same were fired from one and the same weapon---Investigating Officer wrote an application to the concerned authorities in that respect on 17.9.2016, whereas the same were received to the laboratory on 10.11.2016, with the delay of two months---Investigating Officer was yet to explain as to why the application was not written on the date when the empties were collected and that why the empties were not sent there and then---Though the report of Chemical Examiner was in positive, but the record was silent regarding its safe custody in the intervening period---Essential for the prosecution, more particularly, for the Investigating Officer to examine Moharrir of the concerned Police Station along with the official who took the same to the laboratory for its analysis but none of them was examined and that laxity on the part of the Investigating Officer travelled deep to the roots of the prosecution case and as such, that piece of evidence could not be taken into consideration and was outrightly rejected---Circumstances established that the prosecution could not succeed in bring home guilt of the accused---Appeal against conviction was allowed, in circumstances.

Ghulam Akbar and another v. The State 2008 SCMR 1064 rel.

(e) Criminal trial---

----Abscondance---Scope---Abscondance alone could not be a substitute for real evidence because people do abscond though falsely charged in order to save themselves from agony of protracted trial and also to avoid duress and torture at the hands of police.

Muhammad Sadiq v. State 2017 SCMR 144 rel.

(f) Criminal trial---

----Abscondance--- Evidentiary value---Abscondance is a corroborative piece of evidence---Where direct evidence failed, corroborative piece of evidence is of no avail.

Mir Zali Khattak for Appellant.

Haroon-ur-Rashid for Respondents.

Qudrat Ullah Khan, Asstt: A.G. for the State.

YLR 2022 PESHAWAR HIGH COURT 117 #

2022 Y L R 117

[Peshawar (Bannu Bench)]

Before Sahibzada Asadullah, J

SAID ALAM---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Application No. 252-B of 2021, decided on 29th June, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd and common intention---Bail, refusal of---Dying declaration---Scope---Complainant while being in injured condition lodged a report in emergency ward of the hospital to the effect that on the day of incident he along with his father was present at a road when the accused persons fired at him with intention to commit qatl-i-amd, resultantly he was hit and injured, while his father escaped unhurt---Complainant later on succumbed to the injuries---Accused along with two others was directly charged for the murder of the deceased---Main thrust of the counsel for accused was that the injuries did not commensurate with the number of accused and that no bullet marks were found on the surrounding walls---True that the number of injuries did not commensurate with the number of the accused but it was not a rule of thumb that in every criminal case the accused charged was to be released on bail in a mechanical way---Investigating Officer during spot inspection had recovered the empties of different caliber and it was the deceased then injured, who had attributed specific role to the accused with specific weapons of offence---Accused was prima facie connected with the commission of offence---Petition for grant of bail was dismissed, in circumstances.

Muhammad Ashraf Marwat for Appellant.

Iftikhar Durrani for the Complainant.

Arshad Hussain Yousafzai Asstt. A.G. for the State.

YLR 2022 PESHAWAR HIGH COURT 181 #

2022 Y L R 181

[Peshawar]

Before Syed Muhammad Attique Shah, J

SARTAJ and 8 others---Petitioners

Versus

Mst. WAHEEDA GUL and another---Respondents

Civil Revision No. 30-P of 2019 ,decided on 15th February, 2021.

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

----Ss. 42, 54 & 55---Suit for declaration, permanent and mandatory injunction---Partition of immovable property---Scope---Plaintiffs/respondents filed suit for declaration, permanent/ mandatory injunction and possession through partition being widow and daughter of deceased---Suit was resisted by the defendants/petitioners on the grounds that the deceased had divorced his wife during his lifetime and that he was also issueless---Trial Court partially decreed the suit---Appeal filed by both the parties was dismissed---Validity---Plaintiffs in support of their version got recorded the statement of record keeper of (National Database and Registration Authority) NADRA who produced NADRA record wherein plaintiffs were shown recorded as wife and daughter of the deceased---Plaintiffs also produced birth certificate wherein one of them was recorded as daughter of deceased---Defendants, on the other hand, produced retired Secretary Union Council who produced certified copy of the divorce register, however, he could not produce any proof qua his being employed in the concerned Union Council---Divorce register was not brought on record through an official of the concerned Union Council and the original was also not before the Court---Defendants had also failed to discharge the burden of proof qua issuance of general power of attorney in favour of their predecessor by the deceased---Revision petition filed by the defendants was dismissed and that of plaintiffs was allowed as prayed for, in circumstances.

(b) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 7--- Divorce (Talaq)--- Scope---Husband can divorce his wife if he wishes, during subsistence of marriage; however, under the provisions of S. 7 of the Muslim Family Laws Ordinance, 1961, a notice to that effect shall be given to the Chairman of the Union Council or a person appointed by the Government in this behalf and; shall also supply a copy thereof to the wife and; after receipt of the notice, Chairman shall constitute an Arbitration Council for the purpose of reconciliation between the parties and; the Arbitration Council shall take all steps necessary to bring such reconciliation and; upon failure of such reconciliation and expiration of ninety days, Talaq would become effective.

----Arts. 117 & 118---Burden of proof---Scope---Burden of proof lies upon the person who is the beneficiary of a document.

Aamir Khan (Swabi) for Petitioners.

Muhammad Humayun Khan for Respondents.

YLR 2022 PESHAWAR HIGH COURT 363 #

2022 Y L R 363

[Peshawar]

Before Lal Jan Khattak, J

Mir AHMAD KHAN---Petitioner

Versus

SAID GHULAM and 6 others---Respondents

Writ Petition No. 1815-P of 2012, decided on 16th July, 2021.

Civil Procedure Code (V of 1908)--

----S. 12(2)--- Decision on merits--- Suit property saw six owners with consideration since institution of suit till the decree---Petitioner (final purchaser) contended to be bona fide purchaser---Petitioner's application under S.12(2) of Civil Procedure Code, 1908, was concurrently dismissed without framing issues/leading evidence---Knowledge of pendency of suit---Validity---No order had ever been issued by courts restraining further alienation of suit plot during pendency of the suit/appeal---Neither vendor of the petitioner nor the vendor of his vendor were made party to the suit which fact had direct bearing on the petitioner's case---Question of purchaser's bona fide character was to be decided only through evidence---In certain cases instituted under S.12(2) of Civil Procedure Code, 1908, framing of issues and recording of evidence was not necessary but keeping in view the facts of present case, Trial Court had to decide the lis after framing issues and leading evidence---Constitutional petition was allowed accordingly.

Imtiaz Ali for Petitioner.

Nasir Khan Khalil, Barrister Waqar Khan and Abdul Lateef Afridi for Respondents.

YLR 2022 PESHAWAR HIGH COURT 381 #

2022 Y L R 381

[Peshawar]

Before Ijaz Anwar and Syed Arshad Ali, JJ

AISHA---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 1077-P of 2018, decided on 3rd May, 2021.

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

----Ss. 302(b) & 109---Qatl-i-amd, abetment---Appreciation of evidence---Accused was charged for abetting, her paramour to commit murder of her husband by firing---Admittedly, the occurrence had taken place on the spot and in the manner and mode as narrated in the FIR---Medical report and the site plan also supported the manner and mode of the offence---Accused in her statement under S.342, Cr.P.C. admitted that it was her who had lodged the report and thus admitted her presence on the scene of occurrence---Purpose of travelling which the accused had disclosed in her FIR and the mode of occurrence which was in line with her confessional statement had also been established on record as evident from the statements of the son of the accused/eye-witness to the occurrence and the maternal cousin of the deceased, who had confirmed that on the day of incident it was his wedding and the deceased along with the accused were invited for the same---On hearing the incident, he rushed to the place of occurrence and also helped taking the dead body to the hospital---Circumstances established that the case against the accused for abetting the murder of her husband was duly proved by the prosecution---Appeal against conviction was dismissed accordingly.

Fateh Muhammad v. The State PLD 1961 (W.P.) Lah. 212; Shama alias Jinnat Ali v. The State PLD 1966 Dacca 269 and Sohna v. The State 1968 PCr.LJ 50 ref.

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

----S. 164--- Confession--- Retraction---Scope--- Confession recorded by accused could validly form the basis of his/her conviction, if the court was satisfied and believed that it was true, voluntary, was not obtained by torture, coercion or inducement and coherent with the facts and circumstances of the case---Even if such a confession was, later, retracted, it would not lose its evidentiary value, if the same qualified the said criteria.

Mst. Joygun Bibi v. The State PLD 1960 SC (Pak) 313; The State v. Minhun alias Gul Hassan PLD 1964 SC 813; Muhammad Gul and others v. The State 1991 SCMR 942; Raza Mohsin Qazilbash and others v. Muhammad Usman Malik and another 1999 SCMR 1794 and Muhammad Amin v. The State PLD 2006 SC 219 rel.

----Ss. 302(b) & 109---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, abetment---Appreciation of evidence---Confession, retraction of---Scope---Accused was charged for abetting her paramour to commit the murder of her husband by firing---Lynchpin of the prosecution case against the accused was the prompt confessional statement of the accused which was later retracted by her---Record showed that prior to the arrest of accused, she never remained in police custody and her custody was handed over to police by the Air Force Official---On the following day, the accused was produced before the Judicial Magistrate at 11.00 a.m.---Accused was given three hours to ponder and thereafter at 2.00 p.m., her confessional statement was recorded---Judicial Magistrate, in support of recording the confessional statement of the accused, had appeared as witness---Said witness was cross-examined at length, however, the cross-examination did not give any impression that the confession recorded by the accused was involuntary or recorded in her absence as she claimed in her statement recorded under S.342, Cr.P.C.---Tone and tenor of confessional statement of the accused found its support from the contents of the FIR, wherein the manner and mode of offence was explained---Circumstances established that the case against the accused for abetting the murder of her husband was duly proved by the prosecution---Appeal against conviction was dismissed accordingly.

Shabbir Hussain Gigyani for Petitioner.

Ms. Shameen Chaudhry and Shahab Khattak for Respondents.

YLR 2022 PESHAWAR HIGH COURT 418 #

2022 Y L R 418

[Peshawar (Bannu Bench)]

Before Muhammad Naeem Anwar, J

DIL NAWAZ KHAN and 3 others---Petitioners

Versus

Mst. NEK BIBI and 3 others---Respondents

Civil Revision No. 98-B of 2021, decided on 22nd April, 2021.

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

Farhan Aslam and others v. Mst. Nuzba Shaheen and another 2019 SCMR 179 ref.

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

----Ss. 5, 7, 122 & 123---Specific Relief Act (I of 1877), Ss. 42, 39 & 54---Suit for declaration, cancellation of gift-mutation and permanent injunction---Gift---Ingredients ---Correctness and genuineness of gift-mutation---Scope---Plaintiff/wife filed suit for cancellation of gift-mutation incorporated in favour of defendants/respondents (her husband and her/husband's brothers)---Petitioners contended that they had proved the correctness and genuineness of gift mutation by producing relevant Revenue Officers and the marginal witness---Held, that Revenue Officer produced by the petitioners deposed that he himself did not know the donor (plaintiff) and that she (donor) was parda nasheen lady---Witnesses who identified the donor (plaintiff) were not her relatives---Patwari Halqa produced by the petitioners deposed that he had been transferred to concerned Patwar circle after the relevant time and neither he had entered the mutation-in-question nor in his presence said mutation was attested ---Another witness produced by the petitioners deposed that Revenue Officer checked the Computerized National Identity Card (CNIC) of the donor (plaintiff) whereas concerned/retired Tehsildar as a witness deposed that neither the donor had CNIC nor he entered it on the mutation-in-question, thus the authenticity and correctness of gift-mutation was shrouded in mystery, besides the petitioners had not proved the declaration of the alleged gift---Petitioners had not been able to prove the authenticity and correctness of the alleged gift as their case was deficient of required evidence, rather the alleged gift itself was suffering from suspicion and doubts to sustain---Concurrent findings of fact of the Courts below could not be set aside in revisional jurisdiction under S.115 of C.P.C. by the High Court unless such findings suffered from jurisdictional defects, illegality or material irregularity ---No illegality or infirmity was found in the impugned decrees and judgments passed in favour of plaintiff by the Courts below---Revision petition was dismissed, in circumstances.

Wali Muhammad Khan and another v. Mst. Amina and others 2018 SCMR 2080; Naveed Akram and others v. Muhammad Anwar 2019 SCMR 1095; Sikandar Hayat and another v. Sughran Bibi and 6 others 2020 SCMR 214; Umar Dad Khan and another v. Tila Muhammad Khan and 14 others PLD 1970 SC 288; Muhammad Bux v. Muhammad Ali 1984 SCMR 504 and Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 ref.

YLR 2022 PESHAWAR HIGH COURT 454 #

2022 Y L R 454

[Peshawar]

Before Musarrat Hilali and Ahmad Ali, JJ

Mst. ROBINA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 1342-P of 2019, decided on 4th December, 2019.\

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

----S. 9(c)--- Recovery of narcotic substance---Appreciation of evidence---Un-explained delay in registration of F.I.R.---Proof of recovery---Principle---Charas weighing 7.2 Kilograms was alleged to have been recovered from accused on a Railway platform from her bag and vest worn by her---Trial Court convicted the accused and sentenced her to imprisonment for three years with fine---Validity---Occurrence took place at 1050 hours whereas Murasila (complaint) was received in police station at 1730 hours, after a considerable delay of about 7 hours, which went unexplained---All investigation was conducted before lodging of FIR---When officials who recovered contraband themselves stood witnesses then controversy remained unresolved as to who would substantiate their version regarding separate recoveries made by them from accused---Guilt of accused was not only required to be supported by testimony of complainant but also required to be substantiated by other unimpeachable, irresistible, circumstantial and independent evidence and the same was lacking---Recovery in the mode and manner as narrated by prosecution was doubtful and not appealable to general prudence, rather was concocted and fabricated---Statement of prosecution witness did not mention as to whom he handed over the case property and samples for keeping the same in safe custody---High Court extended benefit of doubt to accused and set aside conviction and sentence awarded to her by Trial Court and she was acquitted of the charge---Appeal against conviction was allowed in circumstances.

2019 SCMR 608; 2018 SCMR 2039; 2019 SCMR 903; Ikramullah and others v. The State 2015 SCMR 1002 and 2012 SCMR 577 rel.

(b) Criminal trial---

----Benefit of doubt---Principle---Slightest doubt which occurs in prosecution case is sufficient to acquit accused---For extending benefit of doubt, it is not necessary that there should be many circumstances creating doubts---Single circumstance, creating reasonable doubt in prudent mind about guilt of accused makes him entitled to its benefit, not as a matter of grace or concession but as a matter of right.

2019 SCMR 608; 2018 SCMR 2039; 2019 SCMR 903; Ikramullah and others v. The State 2015 SCMR 1002; 2012 SCMR 577; 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 and 2011 SCMR 820 rel.

Haq Nawaz Khan for Appellant.

Jawad Ali, A.A.G. for the State.

YLR 2022 PESHAWAR HIGH COURT 511 #

2022 Y L R 511

[Peshawar]

Before Syed Muhammad Attique Shah, J

RAHMATULLAH

and 6 others---Petitioners

Versus

ZAMAIDUL and 4 others---Respondents

Writ Petition No. 5878-P of 2018, decided on 12th April, 2021..

Khyber Pakhtunkhwa Tenancy Act (XXV of 1950)---

----S. 25---Qanun-e-Shahadat (10 of 1984), Art.115---Constitution of Pakistan, Art.199---Constitutional petition---Tenant, ejectment of---Estoppel---Suit filed by respondents was decreed in their favour and petitioners were ordered to be ejected from land in question---Validity---Petitioners were recorded as tenants at will and once a tenant was always a tenant---Petitioners could only be ejected through Courts so established under the provisions of Khyber Pakhtunkhwa Tenancy Act, 1950---Petitioners were estopped under provisions of Art. 115 of Qanun-e-Shahadat, 1984, to deny title of respondents, who could not have approached Civil Courts under S.8 of Specific Relief Act, 1877, for redressal of their grievance, instead they had rightly approached Courts established under Khyber Pakhtunkhwa Tenancy Act, 1950---High Court in exercise of Constitutional jurisdiction declined to interfere in judgments and decrees passed by Courts below as there was no illegality in the same---Constitutional petition was dismissed in circumstances.

Tehmas and 16 others v. Dawar Khan PLD 1990 SC 629; Ali Akbar and others v. Malook and others 1991 SCMR 829; Hakeem Shah v. Sawab Khan and 17 others PLD 2002 SC 200 and Dilawar Shah and others v. Jannat Gul through LRs. PLD 2004 SC 59 rel.

Abdul Sattar Khan and Muhammad Zahid Khan Hoti for Petitioners.

Shakeel Zada Khan for Respondents.

YLR 2022 PESHAWAR HIGH COURT 537 #

2022 Y L R 537

[Peshawar (Mangora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

NOOR UL HAQ---Appellant

Versus

The STATE through A.A.G. and another---Respondents

Criminal Appeals Nos.395-M of 2018 and 26-M of 2019, decided on 24th September, 2020.

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

----Ss. 302(b), 311, 322 & 496-A---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, qatl-bis-sabab, enticing or taking away or detaining with criminal intent a woman, possession of unlicensed arms---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of his wife/daughter of the complainant as the co-accused enticed her away---Record showed that no direct evidence of the occurrence was available---So far as the accused was concerned, the witnesses mentioned in the first report had not supported the contents of the report---All the three eye-witnesses had resiled from their earlier statements---Prosecution was then left with circumstantial evidence---Circumstantial evidence in the case had not been found netted together---Circumstantial evidence comprised of mostly isolated pieces of evidence which could not be considered as sufficient for connecting the accused with the commission of offence---No evidence was available that the lady had been enticed away or killed by the co-accused---Circumstances established that the prosecution had not been able to prove case against accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Nazeer Ahmad v. The State 2016 SCMR 1628; Nasrullah alias Nasro v. The State 2017 SCMR 724; Muhammad Pervaiz v. The State and others PLD 2019 SC 592; Arshad Mehmood v. The State 2005 SCMR 1524 and Saeed Ahmad v. The State 2015 SCMR 710 ref.

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

----Ss. 302(b), 311, 322 & 496-A---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, qatl-bis-sabab, enticing or taking away or detaining with criminal intent a woman, possession of unlicensed arms---Appreciation of evidence---Recovery of weapon of offence on the pointation of accused and crime empty from the spot---Reliance--- Scope--- Accused was charged for committing murder of his wife/daughter of the complainant as the co-accused enticed away her---Record showed that an empty of 30 bore pistol had been recovered from the spot on 23.04.2017---30-bore pistol was shown recovered on pointation of accused on 27.05.2017---Both, the empty and pistol, had been sent to Forensic Science Laboratory on 01.06.2017---Report received therefrom and produced in evidence---No doubt that the empty had been fired from the pistol sent to Forensic Science Laboratory, but such a report could not be relied upon as the empty had not earlier been sent to Forensic Science Laboratory and had been kept by the Investigating Officer in wait of recovery of the 30 bore pistol, whereafter both the empty and pistol had been sent to Forensic Science Laboratory together at much belated stage---Recovery of the pistol and its matching report with 30 bore empty shell could not, therefore, be relied upon safely---Circumstances established that the prosecution had not been able to prove case against accused beyond reasonable 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.

Malak Jehangir and Ashgar Ali for Appellant (in Criminal Appeal No.395-M of 2018).

Inayat Ullah Khatir, State Counsel (in Criminal Appeals Nos.395-M of 2018 and 26-M of 2019).

Jawad Ahmad Tajak for Respondent (in Criminal Appeals Nos.395-M of 2018 and 26-M of 2019).

Muqadar Khan for Appellant (in Criminal Appeal No.26-M of 2019).

YLR 2022 PESHAWAR HIGH COURT 578 #

2022 Y L R 578

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

SARBILAND KHAN and another---Appellants

Versus

The STATE through A.A.G. and another---Respondents

Criminal Appeal No. 194-M of 2020 with Murder Reference No. 4-M of 2020, decided on 9th December, 2020.

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

----Art. 46---Dying declaration---Impact---Evidentiary value of dying declaration and its exact place in prosecution evidence in each case is according to its attending circumstances.

Abdul Razik v. The State PLD 1965 SC 151; Taj Muhammad and others v. The State PLD 1960 (W.P.) Lah. 723; Dr. Munir Ahmad v. The State PLD 1986 Quetta 26 and Abdur Rahim v. The State 1997 PCr.LJ 1274 rel.

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

----S.302 (b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Presence of witness--- Proof--- Both accused persons were convicted by Trial Court for committing Qatl-i-amd---Validity---Both the eye-witnesses were living separately from deceased--- First report of occurrence mentioned that witnesses were attracted to the spot on hearing sound of fire shots---First information nowhere mentioned that eye-witnesses had been present in house of deceased at the relevant time---Witnesses could not have reached place of occurrence from their respective houses when accused persons were firing---Only inmate of the house was widow of deceased who was not produced by prosecution as witness and she was abandoned---High Court did not believe presence of prosecution witnesses and seeing accused persons decamping from the spot---High Court extended benefit of doubt to both the accused persons and acquitted them of the charge as prosecution failed to prove its case beyond reasonable doubt---Appeal was allowed, in circumstances.

Muhammad Hamayoon Khan and Nisar Ali for Appellants.

Raza-ud-Din Khan, A.A.G. for the State.

Razaullah and Sabir Shah for Respondents.

YLR 2022 PESHAWAR HIGH COURT 605 #

2022 Y L R 605

[Peshawar]

Before Muhammad Naeem Anwar, J

DIL ARAAM and another---Petitioners

Versus

SHERZADA and 6 others---Respondents

Civil Revision No. 181-P of 2012, decided on 17th December, 2020.

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

----Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120--- Suit for declaration and injunction---Pardahnashin and illiterate lady---Sale mutation, proof of---Onus to prove---Respondents-plaintiffs assailed mutations of sale on the plea of fraud and forgery---Suit was dismissed by Trial Court but Lower Appellate Court decreed the same in favour of respondents-plaintiffs---Validity---All sale mutations were challenged by illiterate and Paradhnashin lady by contending that those were without consideration, without her consent and she never appeared before any revenue officer/ official---Beneficiaries were required to prove, firstly independently factum of sale, secondly payment of sale consideration, thirdly presence of vendor before local commission and putting her thumb impression and fourthly her due identification so that the vendor could not be misidentified---Near and dear i.e. husband and son of lady were alive, who were not identifier of vendor---One who identified the vendor did not know her rather had never met her ever---Payment of sale consideration was not proved---None of the witnesses deposed that in his presence sale consideration was paid---High Court declined to interfere in judgment and decree passed by Lower Appellate Court---Revision was dismissed in circumstances.

PLD 2007 SC 433; 2006 YLR 1513; 1995 CLC 695; PLD 1979 SC 890; PLD 1992 SC 811; 1979 SCMR 625; 2012 MLD 1545; 2008 SCMR 1425; Sardar Ali v. Wazir Khan 2005 SCMR 1583; Ghulam Mustafa v. Muhammad Yahya 2013 SCMR 684; Aurangzeb through L.Rs and others v. Muhammad Jaffar and another 2007 SCMR 236 and Mst. Hafiza Bibi v. Ali Hussain and others 1994 SCMR 1194 ref.

(b) Evidence---

----Expert opinion--- Scope--- Expert opinion is only to corroborate stance of party and such evidence itself does not entitle a party for relief, if not supported by primary evidence.

Abdul Sattar Khan for Petitioners.

Muhammad Taif Khan, Syed Saud Shah, Asad Iqbal Akhunzada and Yousaf Ali for Respondents Nos.1 to 6.

Syed Rehman for Respondents Nos.7 and 8.

YLR 2022 PESHAWAR HIGH COURT 628 #

2022 Y L R 628

[Peshawar]

Before Muhammad Naeem Anwar, J

SHAUKAT ULLAH and 2 others---Petitioners

Versus

GUL UMAR through L.Rs.and 5 others---Respondents

Civil Revision Petition No. 494-P of 2012, decided on 15th December, 2020.

(a) Gift---

----Scope---Plaintiffs sought a declaration that they being legal heirs of alleged donee (first wife/widow of donor), were owners in possession of the suit house---Defendants (brother, brother's son and second wife/widow of donor) claimed that the donor had not gifted the suit house---Alleged donor and donee had departed the earth prior to institution of suit---Validity---Plaintiffs' suit was based on the gift deed---Stamp vendor produced by the plaintiffs deposed that stamp papers were sold by him, however, by whom those were purchased was neither mentioned nor signed on the overleaf of the same---Reasons for non-production of register was shown as the same was submitted to the Treasury office---Gift deed was written on 12.09.1996 on the stamp paper purchased on 22-09-1996---Plaintiffs could not prove the making of gift through independent, direct, sufficient or convincing evidence, as such, the findings of appellate court were the result of misreading and non-reading of evidence, perverse and against the law, which required interference---Revision petition was allowed, in circumstances and judgment and decree passed by appellate court was set aside and that of trial court was restored.

(b) Islamic law---

----Gift---Muslim can gift away his property to anyone and no restriction could be placed on his right.

Ghulam Muhammad v. Mian Muhammad and another 2007 SCMR 231 rel.

----When the gift is alleged by a person in his favour to the exclusion of other legal heirs, then in such an eventuality, the beneficiary is required to prove the same with all its particulars and ingredients i.e., offer, acceptance and transfer of possession under the gift.

Fareed and others v. Muhammad Tufail and another 2018 SCMR 139 and Naveed Akram and others v. Muhammad Anwar 2019 SCMR 1095 rel.

Abdul Sattar Khan for Petitioners.

Muhammad Asif Khan for Respondents.

YLR 2022 PESHAWAR HIGH COURT 664 #

2022 Y L R 664

[Peshawar]

Before Lal Jan Khattak, J

Mst. KHANAM BIBI---Petitioner

Versus

Mst. FOZIA BIBI and 5 others---Respondents

Civil Revision No. 612-P of 2019 with Civil Miscellaneous No. 784-P of 2019, decided on 13th September, 2021.

Civil Procedure Code (V of 1908)---

----O. II, R. 2, O. VII, R. 11 & O. IX, R. 9---Inheritance---Suit for declaration---Application of respondents/defendants for rejection of plaint under O. VII, R. 11 of Civil Procedure Code, 1908 was allowed by Trial Court---Appeal of petitioner/plaintiff was dismissed by appellate Court---Validity---Earlier suit of petitioner was dismissed for non-prosecution---Cause of action in said earlier suit was qua the gift deed whereunder petitioner's mother/deceased had gifted only 1/3 of her share in suit property for religious purpose---Remaining 2/3 was also retained by petitioner claiming entitlement thereof---Order IX, R. 9 of C.P.C. was not applicable to the case---Petitioner's cause of action for her rights in the remaining 2/3 share did not accrue to her at the time when her earlier suit was filed/dismissed for non-prosecution---Order II, R. 2 of C.P.C. was not applicable to the case---At the time of institution of earlier suit, cause of action qua 2/3 shares was not available to petitioner and plaint was not hit by O.VII, R.11 of C.P.C.---Revision petition was allowed accordingly.

Mian Abdul Aziz Qureshi for Petitioner.

Abdul Sattar Khan and Sar Muhammad Khan for Respondents.

YLR 2022 PESHAWAR HIGH COURT 686 #

2022 Y L R 686

[Peshawar]

Before Rooh-ul-Amin Khan S. M. Attique Shah, JJ

HIRA BIBI and another---Petitioners

Versus

MANAGING DIRECTOR LEADS CAMPUS SCHOOL AND COLLEGE, MARDAN and 4 others---Respondents

Writ Petition No. 1064-P of 2021, decided on 16th June, 2021.

Khyber Pakhtunkhwa Private Schools Regulatory Authority Act (XXV of 2017)---

----Ss. 21 & 22---Khyber Pakhtunkhwa Private Schools Regulatory Authority Regulation, 2018, Regln. 5(3)---Non-registration of private school---Approved standards for private schools---Petitioners were students of respondent institution not duly registered with Education Board--- Grievance of petitioners was that due to non-registration of respondent institution, their admission was at stake---Validity---Conduct of respondents was making business from the noble profession of imparting education in an un-registered school and college---Such was the worst example of playing with future of innocent students which was not only violative of the provisions of S.21 of Khyber Pakhtunkhwa Private Schools Regulatory Authority Act, 2017 and para 5 of Khyber Pakhtunkhwa Private Schools Regulatory Authority Regulation, 2018---Owners of school i.e. respondent rendered themselves to penal action i.e. committing an intentional fraud and cheating public at large, therefore, they were not only liable to be dealt with under S.22 of Khyber Pakhtunkhwa Private Schools Regulatory Authority Act, 2017 by Private Schools Regulatory Authority but also under relevant provisions of Penal Code, 1860---High Court directed District Police Officer to depute a police officer to make inquiry and investigation into the matter for taking necessary penal actions, if anyone would found in nefarious business of imparting education in fake and un-registered school in question---High Court directed Provincial Government to constitute a committee for probing into the matter as to how an un-registered institution was allowed to impart education to students, despite the fact controversial position of disputed school was in knowledge of authority of concerned quarters--- Constitutional petition was disposed of accordingly.

Gohar Rehman Khattak for Petitioners.

Arshad Ahmad, A.A.G., Muhammad Kamran, Altaf Hussain and Barrister Asad ul Mulk for Respondents.

YLR 2022 PESHAWAR HIGH COURT 790 #

2022 Y L R 790

[Peshawar]

Before Rooh-ul-Amin Khan and Musarrat Hilali, JJ

Mian HUMAUN SHAH---Petitioner

Versus

REGISTRAR, PESHAWAR HIGH COURT and others---Respondents

Writ Petition No. 2424-P of 2021, decided on 8th September, 2021.

National Judicial Policy, 2009---

----Cl. 3(d)(i)---Criminal case---Scope---National Judicial Policy provides specific time period, mechanism and guidelines for decision of the civil as well as criminal matters and have binding effect which should be strictly followed and complied with by all the courts of the country---Delay in disposal of criminal cases, particularly in bail matters, is mostly observed by the High Court due to non-cooperation of relevant stakeholders of justice sector---At numerous occasions the courts have tried its level best to realize strict compliance of the National Judicial Policy to the justice sector stakeholders for fulfilling their legal obligations towards the expeditious disposal of bail applications, but sometime of no fruitful result---In case of lawyers, the Bar Council being the regulatory authority of legal fraternity may make adherence towards showing their interest in the early disposal of bail applications---In case, particularly, when the bail before arrest matter is unnecessarily adjourned by the accused or by the complainant, the concerned court shall submit report qua reason of delay to the Chief Justice of the High Court through the Additional Registrar (Judicial) and shall also provide detail of order-sheets.

Nazir Ahmad and another v. The State and others PLD 2014 SC 241 ref.

Syed Aziz ud Din Kakakhel for Petitioner.

Nemo for Respondents (case in motion).

YLR 2022 PESHAWAR HIGH COURT 821 #

2022 Y L R 821

[Peshawar]

Before Waqar Ahmad Seth, C.J. and Ahmad Ali, J

USMAN SHAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 900-P of 2019, decided on 12th November, 2019.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Eight kilograms of charas was allegedly recovered from the motorcar driven by accused---Record showed that the seizing officer deposed that after recovery of contraband, he separated samples for Forensic Science Laboratory purpose and sealed in 8 parcels and remaining stuff in parcel No.9 with a monogram of "MK" which he categorically admitted that same was not pertained to his name and in fact the same stood for Sub-Inspector (S.I.), who was stated to be present with the complainant---Said recovery seemed to be doubtful, rather hinted at something having been planted by complainant, because said S.I. was never cited as a witness during the proceedings---Said witness, after few moments in his cross-examination, contradicted his own statement by deposing that SI was present in the police station at that very time---Monogram was lying with him in the official van---Seizing officer, pursuant to spy information, should have been required monogram with the letters "RK" in his possession to have strengthened and substantiated his version, but he disrupted the episode in a casual manner---Record transpired that he handed over the case property to the Moharrir, but said Moharrir was not produced before the court so as to support the version of the complainant and to depose about the safe custody of the case property---Prosecution even did not produce the Register No. 19 of the Police Station so as to prove that the case property was ever kept in Malkhana---Prosecution had wasted the best evidence available with it to establish the safe custody of recovered contraband---Vehicle, from which the alleged recovery was effected, was not produced before the court and was not exhibited during trial---Case property had not been produced by the police before the Trial Court without any justification, which showed that the police had malice against the accused regarding recovery of the contraband---Production of the case property before the court was the primary duty of the police in order to bring home the guilt of the accused---Non-production of the case property was fatal to the prosecution's case and the same had destroyed the very foundation of the case, which created a dent in the prosecution case, causing serious doubt with regard to the occurrence---Appeal against conviction was allowed, in circumstances.

2015 SCMR 291 and 2017 PCr.LJ 14 rel.

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

----S. 9(c)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Possession of narcotics---Appreciation of evidence---Withholding best evidence---Scope---Eight kilograms of charas was allegedly recovered from the motorcar driven by accused---One of the marginal witnesses of the recovery memo was abandoned by the prosecution for reasons best known to them, not only adverse inference under Art. 129(g) of Qanun-e-Shahadat, 1984 could be drawn but the legal inference could also be drawn that if the said witness had entered into the witness box he would have not supported the prosecution case---Witness to the recovery memo had not stated anything about the samples and remaining contraband as to whether the complainant after seizure of the said contraband had handed over the same to someone else or otherwise---Forensic Science Laboratory Report disclosed that the samples were sent to Forensic Science Laboratory through Foot Constable, but no such official was produced before the Trial Court to ascertain that when and through whom he was handed over the said samples for taking the same to Forensic Science Laboratory---Prosecution had failed to prove its case beyond any reasonable doubt, in circumstances---Appeal against conviction was allowed, in circumstances.

NLR 2015 SCJ 121 and PLD 2016 SC 17 rel.

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Delay in sending the sample for analysis---Scope---Eight kilograms of charas was allegedly recovered from the motorcar driven by accused---Record revealed that the contraband was recovered on 09.05.2015 whereas the samples were received in Forensic Science Laboratory on 12.05.2015---Prosecution could not offer any plausible explanation for such delay---Prosecution had not only failed to establish the safe custody of the case property but also failed to prove the safe transmission of the samples to Forensic Science Laboratory---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 be concluded that the prosecution had not succeeded in establishing its case against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Ikramullah and others v. The State 2015 SCMR 1002 and 2019 SCMR 608 rel.

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

----Ss. 9(c) & 21--- Possession of narcotics---Appreciation of evidence---Power of entry, search, seizure and arrest without warrant---Scope---Eight kilograms of charas was allegedly recovered from the motorcar driven by accused---Proceedings were conducted by Police Official/ASI in violation of the provision of S.21 of the Control of Narcotic Substances Act, 1997, despite the fact that two other police officials in the rank of SI were posted in Investigation Wing of said police station--- Such conduct of the prosecution, while dealing with a heinous case, caused considerable loss to its case because neither any site plan nor any card of arrest was prepared---Investigating Officer of the case disclosed that whole of the proceedings were carried out inside the police station, which suggested that the witnesses produced by the prosecution were either not present on the spot or were not narrating the actual truth about the occurrence---Appeal against conviction was allowed, in circumstances.

2018 SCMR 2039 rel.

(e) Criminal trial---

----Benefit of doubt--- Principle---Slightest doubt occurring in the prosecution case will be sufficient to acquit an accused.

(f) Criminal trial---

----Benefit of doubt---Principle---Not necessary that there should be many circumstances creating doubts---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused, makes him entitled to its benefit, not as a matter of grace or 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 rel.

Amjad Noor Khan for Appellant.

Umar Farooq, A.A.G. for the State.

YLR 2022 PESHAWAR HIGH COURT 838 #

2022 Y L R 838

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

NAJEEB ULLAH---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 204-M of 2020 and Criminal Revision No. 12-M of 2019, decided on 28th January, 2021.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Juvenile Justice System Ordinance (XXII of 2000), S. 2(b)---Qatl-i-amd--- Appreciation of evidence---Recording statement of juvenile accused---Scope---Accused was charged for committing murder of the deceased---Record showed that accused had been a juvenile of the age of less than 16 years at the time of commission of the offence---Challan against him was submitted before juvenile court and he had been tried as a juvenile---Age of accused had been shown as 16 years in the charge framed which had nowhere been disputed by the prosecution---Nothing was available on record to suggest that either any intimation or information had been given to any guardian of the accused at the time of his arrest or before recording of his confession or that he had ever been provided a counsel at the time of his arrest or at the time of recording his confessional statement---Accused had been arrested and produced for recording his confession before the Magistrate after three days but nowhere it could be shown that he had ever been provided any counsel or an opportunity of consulting with his guardian---No extra care or caution appeared to have been taken by the Judicial Magistrate in the case while recording confession of the accused---Accused had just been given a short period of 30 minutes for pondering over his confession and then the confession had been recorded in a mechanical manner---Such a time span of 30 minutes was insufficient to remove the fears and apprehensions from his mind which might have been inculcated in his mind by the long police custody---In the given circumstances, confessional statement of the accused could not be relied upon so as to maintain a conviction on a capital charge---Circumstances established that the prosecution had not been able to bring home guilt of the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Hashim Qasim and another v. The State 2017 SCMR 986; Abdul Haleem v. The State 1984 PCr.LJ 611; Zahir Rehman and another v. State through A.A. G and another 2018 PCr.LJ 1465; Kabir Shah v. The State through A.A. G and another 2016 YLR 1291 and Muhammad Ismail v. The State 2017 SCMR 898 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Call Data Record---Scope---Accused was charged for committing murder of the deceased---Prosecution had been relying upon the CDR brought on record---Said data could not be relied upon for the reason that the cell number attributed to the accused had not been on his name and it had though been on the name of his brother---No other evidence had been led before the Trial Court so as to establish that the mobile SIM or phone had been in use of the accused---Such piece of evidence could not, therefore, be relied upon safely---Circumstances established that the prosecution had not been able to bring home guilt of the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence---Reliance---Scope---Accused was charged for committing murder of the deceased---Recovery of the pistol had not been effected from direct possession of the accused or on his pointation---Pistol had been recovered on pointation of another person---Investigating Officer while appearing in court had tried to explain that said pistol had in-fact been handed over by said person to his friend and from him it had been acquired by the accused but neither said person nor his other friend could be produced by the prosecution as witnesses---Accused could not be tagged with recovery of the pistol on mere statement of the Investigating Officer---Recovery of weapon of offence when was not shown to have been effected by the accused then the matching of Forensic Science Laboratory Report would be of no help to the case of prosecution---Circumstances established that the prosecution had not been able to bring home guilt of the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

(d) Criminal trial---

----Circumstantial evidence---Scope---Prosecution was duty bound to have established the whole chain of circumstances in their evidence in a way that it got netted together a chain starting from the dead body at one end and touching neck of the accused on the other.

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

Said Hakim for Appellant (in Criminal Appeal No. 204-M of 2020).

Sohail Sultan, Assistant A.G. for the State (in Criminal Appeal No. 204-M of 2020).

Muhammad Raziq for Respondent (in Criminal Appeal No. 204-M of 2020).

Muhammad Raziq for Petitioner (in Criminal Revision No. 12-M of 2019).

Sohail Sultan, Assistant A.G. for the State (in Criminal Revision No. 12-M of 2019).

Said Hakim for Respondent (in Criminal Revision No. 12-M of 2019).

YLR 2022 PESHAWAR HIGH COURT 878 #

2022 Y L R 878

[Peshawar (Bannu Bench)]

Before Musarrat Hilali and Sahibzada Asadullah, JJ

LAL SHERIN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 213-B of 2018, decided on 29th September, 2020.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of the brother of the complainant by causing dagger blows---Motive behind the occurrence was stated to be a dispute over thoroughfare---Complainant stated that soon after the incident the injured was rushed to the Police Station for report but the officials present in the Police Station refused to register the case and directed to take the injured to the hospital for his medical examination, thus, they reached to the hospital where the doctor examined the injured and prepared his Medico-Legal Report---Medical Officer stated that the injured was brought by the co-villagers at 09.05 a.m. who was examined and his Medico-Legal Report was prepared---Said witness further stated that at the time of examination, the injured was fully conscious and oriented in time and place---If the injured was taken to the Police Station, why the police refused to register a case and when injured was produced before the doctor prior to the report then how the injury sheet was produced along with the injured, when by then the report had not been made---Time of examination of the injured was given as 09:05 a.m., whereas the report was made at 09:30 a.m.---If admitted what the doctor stated as correct that the injured was conscious and capable to talk then why he did not call the police to pen down the report---Injured was oriented in time and space at 09:05 a.m. how did the scribe tell that at 09:30 the injured was unconscious---Scribe while reporting the matter, did not feel the necessity to ask from the doctor as to whether the injured was capable to talk and that what precluded the scribe to take down the report with the injured as complainant---Complainant was not present with the deceased at the time of incident, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Presence of eye-witnesses at the spot doubtful---Scope---Accused was charged for committing murder of the brother of the complainant by causing dagger blows---Medico-Legal Report showed that the column meant for "who brought" was left blank, which helped in forming an opinion that the deceased soon after receiving injuries was rushed to the hospital by the nearby people and that the complainant was not present with the deceased at the time of incident and also at the time when the injured was examined by the doctor---Had complainant been present, his name would have been mentioned in the relevant column and even he would have reported the matter in the hospital where the deceased, then injured, was examined---Complainant stated that when they reached to the place of occurrence, the deceased was walking thirty (30) paces ahead where the accused emerged and inflicted repeated dagger blows---Post-mortem report told that the deceased had received ten dagger blows which took 5/6 minutes for the accused to do away with the deceased and it was thereafter he fled away---When two real brothers were just behind the deceased, what precluded them to rush and rescue, instead waiting to let the accused to quench his thirst---Said witnesses displayed an abnormal conduct and they could not succeed in establishing their presence on the spot---Appeal against conviction was allowed, in circumstances.

Pathan v. The State 2015 SCMR 315 rel.

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive was not proved---Scope---Accused was charged for committing murder of the brother of the complainant by causing dagger blows---Motive behind the occurrence was stated to be a dispute over thoroughfare which led to the death of the deceased but it was to see as to who out of the three brothers should have been the target as the deceased was the youngest---Situation told that had the complainant been present on the spot he would have been the prime target---Though the motive was stated to be a dispute over thoroughfare and in that respect a daily diary was submitted where the complainant was one Subaidar/ uncle of the deceased, but neither the complainant of the daily diary was produced nor the scribe---Daily diary had lost its utility to be considered as a valid piece of evidence and as such could not be taken into consideration---Investigating Officer did not record the statement of any independent witness to support the alleged motive and as such, the prosecution failed to establish the same---Appeal against conviction was allowed, in circumstances.

(d) Criminal trial---

----Motive--- Scope--- Prosecution not bound to setup motive in every case---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.

(e) Criminal trial---

----Motive not proved--- Scope---Prosecution, though is not called upon to establish motive in every case, yet once prosecution sets up a motive and fails to establish, the prosecution must suffer consequences and not the defence.

Amin Ullah v. The State PLD 1976 SC 629 rel.

(f) Criminal trial---

----Medical evidence---Scope---Though medical evidence is confirmatory in nature and it cannot outweigh the direct evidence, however, when direct evidence is not available then medical evidence can and should be considered to benefit the accused.

(g) Criminal trial---

----Absconscion--- Scope--- Mere absconscion is not a conclusive proof of guilt of accused person---Absconscion is only a suspicious circumstance against an accused that he is found guilty of the offence.

Liaqat Hussain and others v. Falak Sher and others 2003 SCMR 611 rel.

(h) Criminal trial---

----Benefit of doubt---Principle---If any reasonable doubt arises in the prosecution case, the benefit of the same must be extended to the accused not as a grace or concession, but as a matter of right---Wisdom behind the same is that lest no innocent be punished.

Muhammad Rashid Khan Dirma Khel and Zafar Jamal for Appellant.

Shahid Hameed Qureshi, Addl: A.G. for the State.

Salamat Shah Mahsood for Respondent.

YLR 2022 PESHAWAR HIGH COURT 944 #

2022 Y L R 944

[Peshawar]

Before Muhammad Naeem Anwar, J

Mst. RESHMA---Petitioner

Versus

Mst. SHABANA---Respondent

Civil Revision No. 382-P of 2020, decided on 17th November, 2020.

Civil Procedure Code (V of 1908)---

----Ss. 97 & O.IX, R.13---Ex-parte decree was not set aside---Partition of property--- Preliminary decree, non-assailing of--- Effect--- Petitioner-defendant was aggrieved of final ex-parte decree passed in favour of respondent-plaintiff---Trial Court and Lower Appellate Court declined to set aside ex-parte order--- Validity--- Preliminary decree was granted on 20-6-2017 and final decree was granted on 20-6-2018---Application for setting aside of ex-parte decree was turned down by Trial Court on 22-2-2019 against which appeal was dismissed on 22-2-2020---Petitioner-defendant did not intend to seek setting aside of preliminary ex-parte decree---When preliminary decree was not challenged, provision of S.97, C.P.C. had come into play, which precluded challenging of final decree---High Court in exercise of revisional jurisdiction declined to set aside ex-pate decree---Revision was dismissed, in circumstances.

1973 SCMR 403; PLD 1971 SC 161; 2018 YLR 779; 2006 CLC 92; 1986 CLC 1241; PLD 1974 Lah. 434; PLD 1970 Lah. 6; 1992 CLC 1362; 2004 YLR 1535; 2000 CLC 1352; 2005 YLR 2817; 2006 YLR 108; 2008 YLR 33; 2019 MLD 1082; 2005 SCMR 609; 2017 YLR 900; 2008 SCMR 227; 2015 CLC 1290; 2005 MLD 157; Conforce Limited v. Rafique Industries Limited PLD 1989 SC 136; The Privy council in Ahmed Musaji Saleji v. Hashim Ebrahim Saleji AIR 1915 PC 116; AIR 1963 Supreme Court 992; Shahid Parvez alias Shahid Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631 and Secretary Education Department, Government of NWFP Peshawar and others v. Asfandiar Khan 2008 SCMR 287 ref.

Malik Muhammad Ajmal Khan, for Petitioner.

Fida Gul, Muhammad Rustam Khan and Asghar Khan for Respondent.

YLR 2022 PESHAWAR HIGH COURT 952 #

2022 Y L R 952

[Peshawar]

Before Lal Jan Khattak, J

Mst. LAILA HUSSAIN---Petitioner

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, PESHAWAR through Chairman and 4 others---Respondents

Civil Revision No. 199-P of 2021, decided on 6th September, 2021.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Correction of date of birth---Limitation---Scope---Petitioner, in a suit for correction of date of birth, was non-suited on the ground that her suit was barred by time---Validity---Limitation was a mixed question of law and facts which could only be resolved after recording evidence---No evidence having been recorded in the case, impugned judgments and decrees were not sustainable---Petitioner had relied upon her school leaving certificate and also upon a certificate issued by the concerned Union Council and in the light of referred certificates, prima facie, her suit appeared to be within time---Revision petition was allowed, impugned judgments were set aside and the Trial Court was directed to decide the petitioner's case on merits.

Sajeed Khan Afridi for Petitioner.

Shahid Imran Gigyani, Assistant Director (Legal) NADRA for the respondents Nos. 2 and 3.

YLR 2022 PESHAWAR HIGH COURT 990 #

2022 Y L R 990

[Peshawar (Bannu Bench)]

Before Muhammad Naeem Anwar, J

KALEEM ULLAH KHAN---Petitioner

Versus

NASIB UR RAHMAN alias NASIB ULLAH and 2 others---Respondents

Writ Petitions Nos. 997-B to 1003-B of 2019, decided on 8th April, 2021.

Khyber Pakhtunkhwa Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Eviction petition---Relationship of landlord and tenant---Scope---Petitioner (landlord) assailed the concurrent dismissal of their ejectment petitions---Validity---Factum of existence of relationship of landlord and tenant was not proved, onus of which was on the petitioners---Neither the petitioners had rented out the disputed premises to the respondents (tenants) nor the respondents had ever paid any rent to the petitioners---When the relationship was not proved, the Rent Controller was left with no option but to dismiss the petitions because rest of the questions required complete/detailed inquiry through recording of pro and contra evidence by the court of competent jurisdiction---Failure of respondents to annex affidavits could not be taken as a sole ground for ejectment as the petitioners had to stand on their own legs and no benefit could be awarded to them from the weakness of respondents---Constitutional petitions were dismissed.

Ghulam Hussain v. Noor Shah Ali 1994 MLD 36; Abdul Karim v. Muhammad Asadullah 1997 CLC 1538; Wahid Bakhsh v. Additional District Judge and others 2005 MLD 1064; Shakeel Masih and ohers v. Sheikh Nadeem Pervaiz through Special Attorney 2006 YLR 1680; Tariq Javed v. Khawaja Muhammad Adil Younis 2007 CLC 1225; Barkat Ali's case 2000 SCMR 556 and Muhammad Sarwar Khan v. Hussain Nawab 1992 CLC 1915 ref.

Rehmatullah's case 1983 SCMR 1064 and Province of Punjab through Education Secretary and another's case PLD 1985 SC 1 rel.

Rafi Ullah Khan for Petitioner.

Shoukat Khan for Respondents.

YLR 2022 PESHAWAR HIGH COURT 1205 #

2022 Y L R 1205

[Peshawar]

Before Lal Jan Khattak, J

GOVERNMENT OF PAKISTAN through Secretary Defence and 3 others---Petitioners

Versus

SHAUKAT ALI and another---Respondents

Civil Revision No.898-P with C.M. No.1451-P of 2021, decided on 10th January, 2022.

Court Fees Act (VII of 1870)---

----S. 7 & Sched. Art. 1---Suit for recovery of money filed by respondent/bidder who was duly awarded the contract to white wash/distemper/ paint Government school; completed the work; submitted the bills; but the said bills were not paid to him---Trial Court decreed the suit---Petitioners filed appeal which was dismissed by appellate Court and subsequent review petition was also dismissed---Validity---Petitioners' appeal was dismissed on the ground that proper court fee was not affixed by the petitioners on memorandum of their appeal despite having been given many opportunities and that appellate court had no other option but to dismiss their appeal---Petitioners' review petition being barred by time was dismissed accordingly.

Qazi Babar Irshad, D.A.G. and Malik Aurangzeb for Petitioners.

Alam Gul Khan for Respondent No.1.

YLR 2022 PESHAWAR HIGH COURT 1228 #

2022 Y L R 1228

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Waqar Ahmad, JJ

SHAH RAWAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.212-M and Criminal Revision No.48-M of 2018, decided on 14th October, 2020.

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

----Ss. 302, 324, 337-F(iii) & 109---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mutalahimah, abetment---Appreciation of evidence---Accused was charged for committing murder of the nephew of complainant by stabbing and also attempted at the life of witness---Land dispute was stated to be the motive behind the occurrence---Complainant stated that he was present with the deceased and other eye witnesses for collecting grass in the land of deceased when the accused approached to the spot and thereafter caused stab injuries to deceased and injured during altercation---Complainant verified his report by reiterating the contents thereof in his examination-in-chief and also confirmed that he led the Investigating Officer to spot along with the injured witness and made pointation of the place of occurrence in the light of which the site plan was prepared---During cross-examination, said witness had narrated in detail the mode and manner as well as the purpose of his departure to the place of occurrence in the company of deceased and other eye witnesses---Complainant also confirmed that he was at a distance of 100/120 feet from the deceased when the accused came closer to him---Statement of the complainant, being straight forward and truthful besides corroborated by other witnesses and circumstantial evidence, inspired confidence therefore, there was no doubt regarding his presence on the spot at the time of occurrence---Testimony of complainant could not be discarded on the sole ground that he was related to deceased---Circumstances established that the prosecution had proved its case against the accused through trustworthy and reliable evidence, therefore, his conviction and sentence by the trial court did not call for any interference---Appeal against conviction was dismissed.

Zafar Iqbal and others v. The State 2014 SCMR 1227 rel.

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

----Ss. 302, 324, 337-F(iii) & 109---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mutalahimah, abetment---Appreciation of evidence---Injured witness---Scope---Accused was charged for committing murder of the nephew of complainant by stabbing and also attempted at the life of witness---Statement recorded by the injured witness as well as the stamp of injury on his person clearly proved his presence on the spot---Defence had objected the testimony of said injured witness mainly on the ground that he had not lodged the report himself in the hospital---However, said injured witness had no relationship with the deceased nor having any venom against the accused, therefore, he could be regarded as the most reliable and credible witness---Being injured, the witness had gone to Civil Hospital where the Investigating Officer recorded his cursory statement after preparing his injury sheet---Station House Officer of Police had already left for the place of occurrence at the time of recording the statement of the injured witness in hospital, therefore, in such like circumstances to discredit the testimony of the injured witness only on the ground that he did not lodge the report, would not be in consonance with principles for appraisal of evidence---Record showed that it was a case of single accused and the injured eye-witness had sustained stab injury at his hand , therefore, substitution of the accused in the case of stabbing from a short distance was not possible and could be possible only in cases of firearm injuries---Circumstances established that the prosecution had proved its case against the accused through trustworthy and reliable evidence, therefore, his conviction and sentence by the Trial Court did not call for any interference---Appeal against conviction was dismissed.

Muhammad Iqbal and others v. Muhammad Akram and another 1996 SCMR 908 rel.

----Ss. 302, 324, 337-F(iii) & 109---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mutalahimah, abetment---Appreciation of evidence---Ocular account and medical evidence---Corroborations---Scope---Accused was charged for committing murder of the nephew of complainant by stabbing and also attempted at the life of witness---Prosecution case got adequate corroboration from medical evidence---Medical report of the deceased showed that Medical Officer found a stab injury with sharp object on the body of deceased which extended deeply to the chest cavity---Medical witness mentioned the cause of death as fatal injuries to vital organs in the chest and heavy bleeding from the thoracic vessels---Injured witness was examined by Medical Officer who in his report recorded a stab wound of 3 cm on right forearm of the injured witness---Contents of initial report were in consonance with the ocular account, medical evidence and site plan---Circumstances established that the prosecution had proved its case against the accused through trustworthy and reliable evidence, therefore, his conviction and sentence by the trial court did not call for any interference---Appeal against conviction was dismissed.

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

----Ss. 302, 324, 337-F(iii) & 109---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mutalahimah, abetment---Appreciation of evidence---Defective investigation---Effect---Accused was charged for committing murder of the nephew of complainant by stabbing and also attempted at the life of witness---High Court observed that investigation conducted in the present case was against the law and relevant procedure, however, no fault of conspicuous nature could be found in the entire investigation proceedings to have prejudiced the accused in any manner---Objection of defence was repelled---Circumstances established that the prosecution had proved its case against the accused through trustworthy and reliable evidence, therefore, his conviction and sentence by the trial court did not call for any interference---Appeal against conviction was dismissed.

Muhammad Ashraf Khan Tareen v. The State 1995 PCr.LJ 313 rel.

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

----Ss. 302, 324, 337-F(iii) & 109---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mutalahimah, abetment---Appreciation of evidence--- Medical report---Scope---Accused was charged for committing murder of the nephew of complainant by stabbing and also attempted at the life of witness---Prosecution version was that occurrence took place at 12:30 hours and the deceased was examined in hospital on the same date at 06:00 pm---Medical Officer had mentioned the duration as 2-6 hours which was in line with the time of occurrence as mentioned in Murasila---Time mentioned by Medical Officer in Medico-Legal Report was speculative and was based on his personal observations, therefore, such error being not conclusive could not impeach the ocular account---Circumstances established that the prosecution had proved its case against the accused through trustworthy and reliable evidence, therefore, his conviction and sentence by the trial court did not call for any interference---Appeal against conviction was dismissed.

Haji and 4 others v. The State 1972 PCr.LJ 465 rel.

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

----Ss. 302, 324, 337-F(iii) & 109---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mutalahimah, abetment---Appreciation of evidence---Delay of two and half hours in lodging the FIR---Effect---Accused was charged for committing murder of the nephew of complainant by stabbing and also attempted at the life of witness---Report was lodged with delay of 2½ hours, however, the record showed that the crime scene was situated in mountainous area at a distance of 24/25 kilometres from the police station---Statements of the eye witnesses showed that the dead body was first brought from the spot to the house of deceased in one hour whereafter the police came to the house of deceased and the said journey of 24/25 kilometres must have consumed time, therefore, the delay was well explained in view of the said facts and circumstances of the case---Circumstances established that the prosecution had proved its case against the accused through trustworthy and reliable evidence, therefore, his conviction and sentence by the Trial Court did not call for any interference---Appeal against conviction was dismissed.

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

----Ss. 302, 324, 337-F(iii) & 109---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mutalahimah, abetment---Appreciation of evidence---Motive was proved---Effect---Accused was charged for committing murder of the nephew of complainant by stabbing and also attempted at the life of witness---Complainant, while disclosing the motive, stated in his report that the occurrence had taken place due to land dispute---According to the report and statements of the eye-witnesses, the accused on his arrival to the spot first inquired the deceased that why he had cut his grass and thereafter he stabbed him during the altercation which had developed between the parties on the same issue---Motive set up in the present case had also been established---Circumstances established that the prosecution had proved its case against the accused through trustworthy and reliable evidence, therefore, his conviction and sentence by the trial court did not call for any interference---Appeal against conviction was dismissed.

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

----Ss. 302, 324, 337-F(iii) & 109---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mutalahimah, abetment---Appreciation of evidence---Absconsion of accused---Effect---Accused was charged for committing murder of the nephew of complainant by stabbing and also attempted at the life of witness---Accused remained fugitive from law for almost three years---Accused had offered no plausible explanation in that regard, thus, the said conduct of the accused further corroborated the ocular account and could be considered as corroborative factor of other convincing evidence available on record against him---Circumstances established that the prosecution had proved its case against the accused through trustworthy and reliable evidence, therefore, his conviction and sentence by the trial court did not call for any interference---Appeal against conviction was dismissed, in circumstances.

Qaisar Khan and others v. The State and others 2009 SCMR 471 rel.

Shaiber Khan for Appellant (in Criminal Appeal No.212-M of 2018).

Murad Akmal for the State (in Criminal Appeal No.212-M of 2018).

Razaullah Khan for the Complainant (in Criminal Appeal No.212-M of 2018).

Razaullah Khan for Petitioner (in Criminal Revision No.48-M of 2018).

Murad Akmal for the State (in Criminal Revision No.48-M of 2018).

Shaiber Khan for Respondent (in Criminal Revision No.48-M of 2018).

YLR 2022 PESHAWAR HIGH COURT 1341 #

2022 Y L R 1341

[Peshawar]

Before Syed Arshad Ali, J

FAISAL KHAN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous (QP) No.111-P of 2021, decided on 22nd December, 2021.

Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019)---

----S.9(d)---Transportation of narcotics---Application for re-summoning of witness and declaring him hostile was allowed---Scope---Record showed that prosecution witness appeared before the Trial Court and recorded his statement---Said witness was cross-examined by the defence---According to the prosecution, said witness had extended some concession to the accused relating to register No. 19 as well as the safe custody of the case property---If a witness in examination-in-chief made a statement adverse to the interest of the prosecution, the court might on the request of prosecutor declare the witness hostile and permit him to exercise the right of cross-examination of the witness---No concept of declaring a witness hostile during his cross-examination by the defence existed---Right of cross-examination of defence was very valuable right and if the witness knowingly or otherwise in cross-examination made a statement which created doubt qua the truthfulness of prosecution case, the benefit of such doubt would always give to the accused and could not be withheld in favour of prosecution---Logic of law was not in favour of grant of permission to the prosecution to cross-examine a witness after cross-examination of defence to impeach the credibility of his statement made by him in cross-examination---Statement of said witness was recorded and the said application to the court was filed after 33 days when he had left the dock as well as the court---Request of the prosecution for declaring him a hostile witness was contrary to the established law---Petition was allowed by setting aside the impugned orders.

State of Bihar v. Lalu Prasad alias Lalu Prasad Yadav AIR 2002 SC 2432; Muhammad Boota and another v. The State and another 1984 SCMR 560 and Muhammad Zafar and 4 others v. The State and another PLD 2013 Lah. 178 ref.

Rahim Ullah and 3 others v. The State 2010 GBLR 560 and State of Bihar v. Lalu Prasad alias Lalu Prasad Yadav AIR 2002 SC 2432 rel.

Noor Alam Khan and Ms. Shabina Noor for Petitioners.

Niaz Muhammad, A.A.G. for the State.

YLR 2022 PESHAWAR HIGH COURT 1380 #

2022 Y L R 1380

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

ZESHAN AKBAR---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeal No.541-M of 2019, decided on 26th May, 2021.

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

----Ss. 302(b), 324 & 201---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, causing disappearance of evidence of offence, giving false information to screen defenders, possession of unlicensed arms---Appreciation of evidence--- Ocular account---Accused was charged for committing murder of his father and also causing injury to the complainant by firing---Motive behind the occurrence was stated to be frequent quarrels of accused with his deceased father---Ocular account was furnished by the complainant and an eye-witness---Said witnesses were examined before the Trial Court---From critical analysis of their statements, it appeared that their testimonies were trustworthy, confidence inspiring and unimpeachable, as on all the material points they had remained consistent---Testimonies of said witnesses were also in line with the initial prosecution version---Occurrence had taken place on 10.07.2016, whereas both the said eye-witnesses were examined by the prosecution after a considerable time on 30.04.2019 before the Trial Court---Despite that both the said witnesses were in conformity with each other qua time and place of occurrence beside being unanimous regarding all other events having relevancy with the incident---Despite of confronting the eye-witnesses, during their cross-examination by the defence in very hectic and confusing manner, they had successfully explained the respective points assigned to them, the deceased and other inmates of the house in the site plan qua their presence on the spot at the relevant time of the occurrence---Circumstances established that the prosecution had proved its case against the accused beyond reasonable doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 324 & 201---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, causing disappearance of evidence of offence, giving false information to screen defenders, possession of unlicensed arms---Appreciation of evidence---Presence of eye-witnesses at the spot was justifiable---Scope---Accused was charged for committing murder of his father and also causing injury to the complainant by firing---Record showed that the time of the incident was 07:30 a.m. early in the morning---Same was also corroborated by the time noted in the medical reports and other circumstantial evidence available on the record---As per statement of Medical Officer, he had examined injured/complainant at 07:50 a.m. i.e. just after 20 minutes of the occurrence, thus, the presence of eye-witness on the spot at the relevant time was quite natural---No denial of the fact that complainant was son of the deceased who had himself sustained injury in the occurrence and thus his presence was established on the spot as there was no clue establishing that he had himself inflicted the injury to falsely enrobe the accused (real brother) for the murder of his father---Circumstances established that the prosecution had proved its case against the accused beyond reasonable doubt---Appeal against conviction was dismissed accordingly.

Zafar Iqbal and others v. The State 2014 SCMR 1227 rel.

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

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

----Ss. 302(b), 324 & 201---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, causing disappearance of evidence of offence, giving false information to screen defenders, possession of unlicensed arms---Appreciation of evidence---Sole accused---Scope---Accused was charged for committing murder of his father and also causing injury to the complainant by firing---Record showed that it was a broad daylight occurrence and both the parties were residing in a joint house and were closely related, therefore, the question of misidentification would also not arise---Except allegations of keeping the crime pistol in their possession and screening off such evidence, no role had been attributed to acquitted co-accused, however, the role of effective firing upon the deceased then injured and complainant had specifically been attributed to the present accused---Case of single accused---In view of the facts that it was a broad day light occurrence, the parties being closely related and a prompt report was lodged, the substitution of real culprit, in the circumstances, was a rare phenomenon---Circumstances established that the prosecution had proved its case against the accused beyond reasonable doubt---Appeal against conviction was dismissed accordingly.

Khan Naveed and another v. The State and others 2008 SCMR 1480; Miran Bux and another v. Muhammad Amir and another 1986 SCMR 1225 and Muhammad Basharat v. The State and another 2003 SCMR 554 rel.

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

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

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

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

----Ss. 302(b), 324 & 201---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, causing disappearance of evidence of offence, giving false information to screen defenders, possession of unlicensed arms---Appreciation of evidence---Motive was proved---Scope---Accused was charged for committing murder of his father and also causing injury to the complainant by firing---Motive alleged by the prosecution in initial report was that the accused had frequently been quarrelling with his deceased father prior to the occurrence---In the first report, reference of filing a complaint against the accused by his deceased father for legal action was also given---Same fact was further corroborated by the eye-witnesses before the court in their respective statements---In that regard, the Investigating Officer had also placed on record copy of the application filed by the deceased before D.P.O, for legal action against the accused---Copy of the complaint under Ss. 107/151, Cr.P.C., lodged on behalf of the deceased against the accused before the Magistrate was also brought on record---Referred documents were produced and duly exhibited during trial---Said documents were bearing the date of 04.07.2016 i.e. about 06 days prior to the occurrence---In such circumstances, it could safely be inferred that relations between the accused and his deceased father had been strained---Circumstances established that the prosecution had proved its case against the accused beyond reasonable doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 324 & 201---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, attempt to commit qatl-i-amd, causing disappearance of evidence of offence, giving false information to screen defenders, possession of unlicensed arms---Appreciation of evidence---Defence plea---Scope---Accused was charged for committing murder of his father and also causing injury to the complainant by firing---Defence had raised a plea that the accused had been a drug addict at the relevant time---Such fact had also been admitted by the eye-witnesses before the court during their cross-examination---To support his assertion, defence referred to certain portions of cross-examination of said eye-witnesses---Taking of intoxicants by a person at his will and commission of an offence during such state of intoxication had never been recognized as an exception from the criminal liability that was ensued as a result of doing of the act---In the present case, there was nothing on record to suggest that the intoxicant was administered against the will of the accused or that he had been suffering from any mental debilitating condition---Besides, the manner in which the offence had been committed, escape of the accused after commission of the offence and then going in abscondence nowhere showed that he had ever been suffering from any mental illness---Circumstances established that the prosecution had proved its case against the accused beyond reasonable doubt---Appeal against conviction was dismissed accordingly.

Hazrat Hayat v. The State 1974 SCMR 295 rel.

Barrister Asad-ur-Rehman for Appellant.

Haq Nawaz Khan, A.A.G. for the State.

Qazi Farid Ahmad for Respondent/the Complainant.

YLR 2022 PESHAWAR HIGH COURT 1429 #

2022 Y L R 1429

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

NAZR UL ISLAM---Appellant

Versus

The STATE through ADITIONAL ADVOCATE GENERAL and another---Respondents

Criminal Appeal No. 565-M with M.R. No.19-M of 2019, decided on 18th May, 2021.

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

----Ss. 302(b) & 353---Qatl-i-amd, assault or use criminal force to deter public servant from discharge of his duty---Appreciation of evidence---Accused was charged for committing murder of SHO and an A.S.I. by firing---Motive for the occurrence was stated that the accused had been annoyed due to his transfer from the main police station to police Garth---Record showed that the eye-witnesses in the case whether Police Officials or owner of the Hujra where the occurrence had taken place had been absolutely reliable witnesses---Said witnesses had no axe of their own to be grinded in the matter---No mala fide or ill-will could be attributed to them---Eye-witnesses had been members of the police party and therefore former colleagues of the accused---Defence had challenged credibility of the eye-witnesses on the ground that they had been Police Officials---Eye-witnesses had no doubt been Police Officials but it was equally important to note that they had been deposing against another Police Official---Eye-witnesses had been on duty on the relevant day for which duties of accused had also been called upon---Said witnesses had never remained hostile or inimical to the accused---Eye-witnesses had been natural, independent and trustworthy witnesses, who had offered a credible, reliable and natural account of the occurrence---No such reason could be advanced even at the bar that why the accused had been implicated solely in such a serious case and substituted him for the real culprit---Circumstances established that case of the prosecution stood proved from all angles and there remained no doubt regarding culpability of the accused---Appeal against conviction was dismissed, accordingly.

2020 SCMR 1049; 2021 SCMR 455; 2011 PCr.LJ 363; 2020 PCr.LJ Note 13; 2021 YLR 163; 1986 SCMR 1027; PLD 2002 SC 786; 2007 SCMR 641; PLD 2016 SC 17; 2001 SCMR 387; 2005 YLR 584; 2016 PCr.LJ 1408 and 2001 PCr.LJ 453 ref.

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

----Ss. 302(b) & 353---Qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty---Appreciation of evidence---Accused was charged for committing murder of S.H.O. and an A.S.I. by firing---Ocular account and medical evidence---Corroboration---Case of the prosecution had not been lacking in corroboratory evidence as well---Statement of the Medical Officer had also been showing that deceased A.S.I. had received nine firearm injuries while deceased S.H.O. had received two injuries---Medico-legal evidence had fully been supporting case of the prosecution---No conflict between ocular account and medical evidence could be highlighted by defence---Circumstances established that case of the prosecution stood proved from all angles and there remained no doubt regarding culpability of the accused---Appeal against conviction was dismissed accordingly.

----Ss. 302(b) & 353---Qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty---Appreciation of evidence---Recovery of weapon of offence and crime empties---Reliance---Scope---Accused was charged for committing murder of S.H.O. and a A.S.I. by firing---During the course of investigation the Investigating Officer took in possession the weapon of offence i.e. Kalashnikov after being produced by the complainant before him---Police Constable had also been examined in support of the recovery memo---Complainant while deposing in court had also stated that they had overpowered the accused and took from him the Kalashnikov i.e. weapon of offence as well as from his personal search they had also recovered a 30-bore pistol along with six live rounds---Other eye-witness had also supported the complainant in that assertion---Recovery of weapon from possession of the accused had stood proved which had subsequently been taken in possession by the Investigating Officer---Twenty-eight crime empties of 7.62 bore had been recovered by Investigating Officer from the spot of occurrence---Weapon of offence and crime empties had been sent to Forensic Science Laboratory for the purpose of obtaining an expert opinion about its matching, report received therefrom revealed that all the empties had been fired from the SMG rifle No. 4607614 (recovered from the accused)---Said corroboratory pieces of evidence had also been going in synchronization with case of the prosecution---Circumstances established that case of the prosecution stood proved from all angles and there remained no doubt regarding culpability of the accused---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b) & 353---Qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty---Appreciation of evidence---Motive was proved---Scope---Accused was charged for committing murder of S.H.O. and an A.S.I. by firing---Prosecution had also been able to successfully prove the motive, as the eye-witnesses particularly belonging to police besides other Police Official witnesses, had stated unanimously that the accused had been feeling aggrieved due to his transferfrom the main police station to the police Garth at a school---Such a motive had not been seriously questioned by the defence side during the course of cross-examination and it stood proved, in circumstances--- Circumstances established that case of the prosecution stood proved from all angles and there remained no doubt regarding culpability of the accused---Appeal against conviction was dismissed.

Waris Khan v. The State 2001 SCMR 387 rel.

Sher Muhammad Khan for Appellant.

Haq Nawaz, Astt:A.G. and Badi-uz-Zaman Khan for Respondents.

YLR 2022 PESHAWAR HIGH COURT 1450 #

2022 Y L R 1450

[Peshawar (Bannu Bench)]

Before Musarrat Hilali and Sahibzada Asadullah, JJ

IKRAMULLAH---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.120-B with Murder Reference No.4-B of 2019, decided on 22nd June, 2020.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Un-natural conduct of the complainant---Scope---Accused was charged for committing murder of the brother of complainant by firing---Motive for the occurrence alleged by the complainant was exchange of words/altercation between the accused and the deceased a few days earlier---Complainant stated that a few days earlier the deceased and the accused had altercated with each other and that the previous episode was the motive which attracted the accused to the site of occurrence to settle the score---If the present incident was the aftermath of previous altercation then instead of entering into altercation the assailant soon on arrival would have fired upon the deceased, had he come with the intention---Evidence showed that soon after the fire was made the complainant rushed to the deceased and found him struggling between life and death, but he lost the battle---Time between injury and death was given as 20-40 minutes, whereas the deceased was put in the Pick-up for Police Station when he breathed his last---Said element was of surprise that when the complainant soon after the incident attracted to the deceased and so the other people, who were watching the volleyball match then why they did not immediately shifted the injured to the hospital to save his life and why all arrangements were made when the deceased breathed his last---Conduct displayed by the complainant was not only strange but abnormal as well that no immediate efforts were made to save the life of the deceased by shifting him immediately to the hospital when there were still chances to survive---Circumstances established that the prosecution had failed to prove its case against accused---Appeal against conviction was allowed, in circumstance.

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

----S. 302(b)---Qatl-i-amd---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 brother of complainant by firing---Presence of the complainant on the spot was yet a mystery as the scribe, who stated that the dead-body was brought by 7/8 co-villagers, did not say a word regarding presence of the complainant with the deceased---Presence of the complainant was further doubted that despite alleged presence in the Police Station, he did not identify the dead-body of the deceased at the time of preparation of inquest report and so before the doctor at the time of post-mortem examination, rather two other persons identified the dead-body before the police and the doctor---Had complainant been present in the Police Station whe0n the police was preparing the inquest report, he would have been figured in the column of identification---Another intriguing aspect of the case was that the complainant stated that after making report he left for home on his motorcycle, whereas nowhere on record he was shown in possession of a motorcycle, it was in a pick up in which he along with others allegedly brought the dead-body of his brother to the Police Station---Statement of the complainant in that respect told nothing but that he was present in his house and that it was after receiving information from Police Station regarding the incident he rushed to the Police Station and thereafter the report was made---Circumstances established that the prosecution had failed to prove its case against accused---Appeal against conviction was allowed, in circumstances.

Muhammad Ashraf alias Acchu v. The State0 2019 SCMR 652 rel.

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd---Appreciation of evidence---With-holding material evidence---Scope---Accused was charged for committing murder of the brother of complainant by firing---Complainant stated that the incident was also witnessed by five other persons---Surprisingly, witness who identified the dead-body before the police and the doctor was abandoned despite the fact that he too was stated to be the eye-witness of the occurrence---Withholding of the best available evidence spoke nothing but that had he been produced he would not have supported the charge of the complainant against the accused and that was what the Art. 129(g) of the Qanun-e-Shahadat, 1984 catered for---Appeal against conviction was allowed, in circumstances.

Riaz Ahmad v. The State 2010 SCMR 846 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Unwitnessed occurrence---Benefit of doubt---Accused was charged for committing murder of the brother of complainant by firing---Complainant stated that five others besides him witnessed the occurrence and he also mentioned their names but the Investigating Officer did not take the pain to record their statements---Said lack of interest on part of the Investigating Officer as well as the complainant told nothing but that the murder was un-witnessed and that no volleyball match was in progress at the time of occurrence---Said factor found support when the complainant stated in his court statement that he alone was watching volleyball match and when he realized the blunder, he improved his statement and stated that they all were five---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 set-up motive in every case but once it was alleged and not proved then ocular account was required to be scrutinized with great caution.

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.

(f) Criminal trial---

----Absconsion---Scope---Mere absconscion of accused was not conclusive guilt of an accused---Absconsion was only a suspicious circumstance against an accused that he was found guilty of the offence---However, suspicions after all were suspicions, the same could not take the place of proof, the value of absoncion, therefore, depended on the facts of each case.

Liaquat Hussain and others v. Falak Sher and others 2003 SCMR 611 rel.

Muhammad Rashid Khan Dirma Khel and Masood Adnan for Appellants.

Shahid Hameed Qureshi Addl: A.G. for the State.

Haji Hamayun Khan Wazir for Respondents.

YLR 2022 PESHAWAR HIGH COURT 1478 #

2022 Y L R 1478

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmad and Ahmad Ali, JJ

ABDUL HALEEM---Appellant

Versus

The STATE and 4 others---Respondents

Criminal Appeal No.364-A of 2019, decided on 22nd April, 2020.

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

----Ss. 302 & 34---Qatl-i-amd and common intention--- Appreciation of evidence---Benefit of doubt---Delayed FIR--- Contradictory statements of witnesses---Un-natural conduct of witnesses---Scope---Accused persons were alleged to have indiscriminately fired at the deceased within the view of eye-witnesses---Exact time of occurrence was not established---Statements of witnesses and Investigating Officers were contradictory to that extent---Delay in lodging the report in view of peculiar facts and circumstances of the case had gained much significance, as such, the factors of deliberation consultation and preliminary investigation could not be ruled out---Despite alleged indiscriminate firing by three accused persons none of the prosecution witnesses tried to escape or even got hit with a single fire shot rather they surprisingly stood firm to watch minutely that the fire shot of main accused hit the deceased on his head, which in the ordinary course of life was impossible---Occurrence had not taken place in the mode and manner as alleged by the eye-witnesses---Prosecution had failed to prove its case beyond reasonable doubt---Appeal against acquittal was dismissed, in circumstances.

(b) Criminal trial---

----Appreciation of evidence---Once intrinsic worth of ocular account is accepted and believed then rest of the evidence, both circumstantial and corroboratory in nature, would be required as a matter of caution---Conversely, once the ocular account is disbelieved then no other evidence, even of a high degree and value, would be sufficient for recording conviction on a capital charge.

----S. 417---Appeal against acquittal---Scope---Accused person, on acquittal, earns twofold innocence---Standard and principle of appreciation is entirely different from that in a case of conviction---Findings of trial court can only be reversed by High Court in its appellate jurisdiction if the same are found to be perverse, fanciful, arbitrary or based on mis-reading and non-reading of material evidence causing miscarriage of justice.

1995 SCMR 127; 2015 SCMR 1142; 2017 SCMR 2002; 2017 SCMR 2007 and 2017 SCMR 1710 ref.

(d) Criminal trial---

----Benefit of doubt---Scope---Even a single doubt, if found reasonable, would entitle the accused person to acquittal and not a combination of several doubts.

Ghulam Qadir v. The State 2008 SCMR 1221 rel.

1992 SCMR 366; 1995 SCMR 1345; 1995 SCMR 1730; 2004 SCMR 215; 2004 SCMR 140; 2009 SCMR 230; 2013 SCMR 192; 2016 SCMR 2073; 2017 PCr.LJ 185; 2017 SCMR 596; 2017 SCMR 986 and 2019 PCr.LJ 337 ref.

Malik Amjad Ali for Appellant.

Nemo for Respondents.

YLR 2022 PESHAWAR HIGH COURT 1547 #

2022 Y L R 1547

[Peshawar (Bannu Bench)]

Before S.M. Attique Shah and Sahibzada Asadullah, JJ

GHULAM JAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.197-B of 2019, decided on 17th March, 2021.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Delay of two hours and forty five minutes in reporting the matter to the police---Scope---Allegation against the accused was that he made firing upon complainant and his cousin, due to which, the cousin of complainant died while complainant escaped unhurt---Record showed that the incident occurred at 05:00 p.m., whereas the matter was reported at 07:45 hours, that too on arrival of the local police to the place of incident---Fact remained that it took nearly three hours that the police arrived to the spot on receiving information, however, it was yet to know as to why the complainant did not inform the police despite the fact that he was in possession of his personal mobile phone---Circumstances established that the prosecution could not succeed in bringing home guilt against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Benefit of doubt---Allegation against the accused was that he made firing upon complainant and his cousin, due to which, the cousin of complainant was hit and died while complainant escaped unhurt---Site plan showed that incident occurred on the metalled road while the traffic was plying thereon, but the complainant was least interested to shift the dead body either to police station or to Hospital---Complainant when appeared before the Trial Court stated that he left his village in the company of the deceased and reached to the spot at 05.00 pm---Complainant further stated that the deceased at the time of incident was walking ahead by ten feet when they were fired at---Stance taken by the complainant was belied by the site plan which was prepared on his pointation---Complainant pointed the inter se distance as thirty feet---When both, the complainant and deceased were on foot towards the village to settle a dispute, why they were walking with such an abnormal distance in between---Complainant stated that the accused fired at both of them, but he escaped unhurt as he ran from the place of incident towards the fields---Complainant further stated that while running the accused did not fire at him---Complainant failed to explain that why he was fired at, as he was not connected with the alleged motive---Incident, in fact, occurred at the deserted place with nobody around, both the complainant and deceased were at the mercy of the accused, had the accused the intention to kill the complainant, no hurdle was in between---Complainant stated that while running from the spot, he was not fired at, such explanation of complainant contradicted his own stance---Dead body was lying on the road while the complainant sitting around waiting for arrival of the local police was not normal conduct---Witnesses and local police reached to the spot at one and the same time after hours of the incident---Circumstances established that the prosecution could not succeed in bringing home guilt against the accused---Appeal against conviction was allowed, in circumstances.

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Presence of complainant at the spot was not justifiable---Scope---Allegation against the accused was that he made firing upon complainant and his cousin, due to which, the cousin of complainant died while complainant escaped unhurt---Site plan showed the house of one "F" near the place of incident and also the village abadi at a little distance, but the complainant did not move an inch to ask their help and even no one attracted to the spot till arrival of the local police---Matter was reported to ASI, who stated that on arrival to the spot, only the complainant was present, whereas the dead-body was lying on the ground; he further stated that apart from murasila, he prepared the injury sheet and inquest report---Said witness admitted that no empty was lying on the spot---Police witness admitted the presence of the complainant with the deceased, but maintained silence in respect of the other witnesses---If the inquest report was prepared on the spot, then wherefrom "N" reached, complainant claimed that on his information two persons arrived at the spot---Scribe while preparing the inquest report, mentioned the word "Fire Arm" in the relevant column, whereas the complainant while reporting the matter specified the weapon used as pistol, again in the relevant column the time of death was mentioned as 8.55 a.m. and the complainant also admitted the time of death as 8.55 hours---Had the complainant reported the matter on the spot, then the scribe would have used the word pistol instead of firearm and the time of death as 17:00 hours, instead of 8:55 p.m.---Anomaley on part of the police official to whom the matter was reported led to hold that the matter was not reported on the spot and at the stated time---Circumstances showed that the police conducted preliminary investigation and when attendance of the complainant was procured the matter was reported---Circumstances established that the prosecution could not succeed in bringing home guilt against the accused---Appeal against conviction was allowed, in circumstances.

Nazir Ahmad v. The State and others 2019 SCMR 594 rel.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Medical evidence---Scope---Allegation against the accused was that he made firing upon complainant and his cousin, due to which, the cousin of complainant died while complainant escaped unhurt---Medical Officer who conducted autopsy on dead-body of the deceased stated that he did not write the names of the identifiers in the relevant column and that the identifiers were summoned by his staff---Medical Officer further stated that overwriting was made by him in the time of arrival and the time of examination---Said witness said that he could not rebut or affirm the suggestion that the dead body was examined at 12.55 am, midnight--- Uncertainty prevailed throughout his statement---Conduct of said witness was not above board, his reckless tampering in the relevant columns confirmed that neither the complainant nor the witnesses were present at the time of report and the post-mortem examination---Uncertain reply of the said witness in respect of 12.55 a.m., night confirmed the time of occurrence as 8.55 a.m., as it was he who mentioned the time between the death and post-mortem as 4 to 5 hours---Record showed that 8.55 a.m. was the time mentioned by the Police Official in the relevant column of the inquest report and by the complainant in his court statement---Cumulative effect of what was stated by witness led to hold that neither the incident occurred at the stated time nor the complainant was present when the deceased was done to death---Circumstances established that the prosecution could not succeed in bringing home guilt against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Recovery of blood through cotton from the place of occurrence---Scope---Allegation against the accused was that he made firing upon complainant and his cousin, due to which, the cousin of complainant died while complainant escaped unhurt---Record showed that the Investigating Officer visited the spot, recovered blood from the place of the deceased, but no empty was recovered---Question arose when 3/4 shots were fired, why no empty was found by both the Police Officials, despite the fact that the complainant remained present on the spot till the report was made---Circumstances established that the prosecution could not succeed in bringing home guilt against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Site plan---Scope---Allegation against the accused was that he made firing upon complainant and his cousin, due to which, the cousin of complainant died while complainant escaped unhurt---Record revealed that, it was yet to know, as to whether the site plan was prepared on the night of incident or on the following day---Record showed that it was suggested to the Investigating Officer that he visited the spot in the morning on the following day, to which he denied---Complainant stated that it was on his pointation on the night of incident that the site plan was prepared---Investigating Officer again visited the spot at 7:00 a.m. in the morning, but he failed to convince the purpose of his visit when he had already completed the proceedings in the night of incident---Fact that the site plan was not prepared during the night of incident, but early in the morning seemed to be confirmed---Complainant, when denied his second visit, it could safely be held that the site plan was not prepared on the pointation of the complainant, which in turn excluded his presence on the spot---Circumstances established that the prosecution could not succeed in bringing home guilt against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Motive not proved---Scope---Allegation against the accused was that he made firing upon complainant and his cousin, due to which, the cousin of complainant was hit and died while complainant escaped unhurt---Motive was stated to be a dispute over women folk with further explanation that due to strained relations, the wife of the deceased had left his house and was residing at her parents' home and that on the day of incident the deceased went for reconciliation when the incident took place---Investigating Officer did not record statement of the wife of the deceased to confirm the motive and even no independent witness was produced in that respect---Prosecution failed to prove motive, in circumstances---Circumstances established that the prosecution could not succeed in bringing home guilt against the accused---Appeal against conviction was allowed, in circumstances.

(h) Criminal trial---

----Motive---Scope---Absence or weakness of motive did not play a decisive role in the acquittal of an accused, but once motive was alleged the prosecution was bound to prove the same, failing which the prosecution was to suffer.

Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 rel.

(i) Criminal trial---

----Abscondence---Scope---Abscondence alone could not be a substitute for the direct evidence.

Muhammad Sadiq v. State 2017 SCMR 144 rel.

Muhammad Rashid Khan Dirma Khel for Appellant.

Shahid Hameed Qureshi, Addl: A.G. for the State.

Muhammad Alamgir Khan Wazir for the Complainant.

YLR 2022 PESHAWAR HIGH COURT 1655 #

2022 Y L R 1655

[Peshawar (D.I. Khan Bench)]

Before Muhammad Faheem Wali, J

JAVED KHAN---Petitioner

Versus

The STATE---Respondent

Criminal M. B. No. 148-D of 2022, decided on 15th April, 2022.

(a) 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---Delay in conclusion of trial---Scope---Accused sought bail on the ground of delay in conclusion of trial---Seven kilograms of charas was recovered from the accused, hence, his case came under Part (a) of the 3rd proviso of S. 497(1), Cr.P.C., as the mandatory punishment of death and imprisonment for life pertained to only those cases where the quantity recovered exceeded 10 kgs---For such reason, the accused could claim benefit to be released on statutory ground under S. 497(1)(a) of 3rd proviso that provided entitlement to be released on bail after continuous detention exceeding one year, if delay in conclusion of the trial could not be attributed to him or any person acting on his behalf---Order sheets of the Trial Court indicated that the delay in conclusion of trial was caused on the part of prosecution---Nothing was available on the record that accused was; (i) a convicted offender for an offence punishable with death or imprisonment for life; or (ii) a hardened, desperate or dangerous criminal, in the opinion of the Court; or (iii) an accused of an act of terrorism punishable with death or imprisonment for life---Petition for grant of bail was allowed, in circumstances.

Shakeel Shah v. The State and others 2022 SCMR 1 ref.

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

----S. 497---Bail---Statutory ground of delay---Scope---Part (a) of third proviso to S. 497(1), Cr.P.C. envisages that in an offence not punishable with death, the trial of the accused is to be concluded within a period of one year from the date of his/her detention, and in case the trial was not so concluded, the law mandates the release of the accused on bail---Accused has a statutory right to be released on bail if his trial for such offence was not concluded within a period of one year from the date of his detention and such period begins from the date of the arrest/detention of the accused and it is of little importance as to when the charge was framed and the trial commenced---Purpose and objective of the provision is to ensure that the trial of an accused is conducted expeditiously and the pre-conviction detention of an accused does not extend beyond the period of one year in cases involving offences not punishable with death---If the trial of an accused was not concluded within a year of his detention, the statutory right to be released on bail ripened in his favour---Such statutory right to be released on bail is, however, subject to two exceptions: one is embodied in the third proviso itself and the second is provided in the fourth proviso to S. 497, Cr.P.C.---As per these exceptions, the right to be released on bail on the ground of delay in conclusion of the trial is not available to an accused if: (i) the delay in conclusion of the trial is occasioned by an act or omission of the accused or by any other person acting on his behalf, or (ii) the accused is a convicted offender for an offence punishable with death or imprisonment for life or is, in the opinion of the Court, a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life---Second exception to the right of the accused to be released on bail on the ground of delay in conclusion of the trial is provided in the fourth proviso to S. 497, Cr.P.C. according to which the provisions of the third proviso do not apply to the accused who is: (i) a convicted offender for an offence punishable with death or imprisonment for life; or (ii) a hardened, desperate or dangerous criminal, in the opinion of the Court; or (iii) an accused of an act of terrorism punishable with death or imprisonment for life.

----S. 9(c)---Criminal Procedure Code (V of 1898), S.497---Possession of narcotics---Bail---Statutory ground of delay---Scope---Proviso to S. 9(c) of the Narcotic Substances Act, 1997, provides that if quantity of narcotics recovered exceeds 10 K.Gs. then the punishment shall not be less than imprisonment for life---By necessary application it will conversely suggest that if the quantity of recovered narcotic is less than 10 K.Gs., then the mandatory punishment of imprisonment for life so provided in the proviso would not be applicable.

Muhammad Ilyas Khan Marwat for Petitioner.

Hamid Sarfaraz, Special Prosecutor, ANF for the State.

YLR 2022 PESHAWAR HIGH COURT 1720 #

2022 Y L R 1720

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

BIBI FARIDA and 2 others---Petitioners

Versus

GUL REHMAN and others---Respondents

Petition No. 12(2) No.11-M of 2021 in C.R. No. 59 of 2013, decided on 20th September, 2021.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Specific Relief Act (I of 1877), Ss. 8, 42 & 54---Suit for recovery of possession, declaration and injunction---Judgment, setting aside---Fraud and misrepresentation---In suit filed by plaintiffs, applicants were represented through their real brothers---Suit was decreed in favour of plaintiffs and appeal before Lower Appellate Court was dismissed---During pendency of revision petition before High Court, applicants sought setting aside of judgments and decrees under S.12(2), C.P.C.---Entire family had been part of litigation and three Local Commissions visited the spot which had been constituting the cause of dispute in instant litigation but nowhere could the applicants become aware of pendency of litigation---Such stance was unbelievable and nothing more than a false plea and an afterthought---If such practice was allowed, then there would be no end to abuse of process of Court and there could be no finality ever in litigation between parties---Application was an effort of the nature of abuse of process of Court and deserved to be buried at very first instance---Petition was dismissed, in circumstances.

Trading Corporation of Pakistan v. Devan Sugar Mills Limited PLD 2018 SC 928; Muhammad Azeem and 3 others v. National Bank of Pakistan and 8 others 2001 MLD 135; Director of Criminal and Penal Prosecutions v. Robert Jodon and others 2017 SCMR 1444; Muhammad Younis and another v. Venue Gurdas Advani and others 2015 CLD 390; Pakistan Steel Oil Company Limited through Attorney v. Abdul Khalique Gandakwala 2000 CLC 1196 and Iqbal Sultan v. Miss Chand Sultan and 2 others 1990 CLC 366 rel.

Muhammad Arif for Petitioners (via video link).

Shams-ur-Islam and Fazal Maula on behalf of Respondents, in person.

YLR 2022 PESHAWAR HIGH COURT 1793 #

2022 Y L R 1793

[Peshawar (Bannu Bench)]

Before Sahibzada Asadullah and Muhammad Naeem Anwar, JJ

ALI NAWAZ---Appellant

Versus

The STATE through Advocate General Bannu Bench and another---Respondents

Criminal Appeal No. 31-B and Murder Reference No. 3-B of 2020, decided on 9th June, 2021.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Unnatural conduct of complainant and eye-witness---Scope---Accused was charged for committing murder of the brother of the complainant by firing---Motive was stated to be an early altercation between the parties in football ground---If it was admitted what the complainant stated to be correct, then the question arose as to what prompted the accused to fire at the deceased and not the complainant, while fully armed and that why the accused ran the risk to transport the accused to the place situated in front of his house---Inter-se distance between the assailants and the complainant party had been shown as less than seven (7) feet, but neither the complainant nor the eye-witness made any efforts to rescue their brother from the firing made by the accused and why the accused did not kill the complainant and the eye-witness, as it was in the statement of the complainant that a few days back an altercation took place between them and the accused---Conduct displayed by the complainant was unnatural on one hand, whereas on the other, he was struggling hard to establish his presence on the spot---Circumstances established that the 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(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Presence of complainant at the spot was doubted---Scope---Accused was charged for committing murder of the brother of the complainant by firing---Record was silent as to what the accused wanted to achieve by bringing the deceased just in front of their house and to kill him---Had that been the motive, the accused would have easily achieved their target in front of the house of the complainant instead of shifting the deceased to the spot---Both, the complainant and the eye-witness, were labourers and working in the brick kiln and it was on record that the distance between the place of occurrence and place of their business was not more than two (2) kilometres---Complainant stated that after receiving firearm injuries, the deceased fell to the ground and survived for five minutes and the accused decamped from the spot---Though it had been stated that the cot was arranged from the nearby house but the complainant categorically stated that neither he nor the eye-witness helped in shifting the dead body of the deceased from the ground to the cot---Such conduct did not appeal to a prudent mind, as in that eventuality the real brothers would have attracted to the dead body soon after the incident and thereafter---Said part of the statement of the complainant gave inference that he was not present on the spot at the time of incident and soon thereafter---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of forty five minutes in lodging the FIR---Scope---Accused was charged for committing murder of the brother of the complainant by firing---Record showed that the dead body was shifted to the local police station where the matter was reported by the complainant and verified by the eye-witness---Injury sheet and the inquest report were prepared after registration of the case, but surprisingly, the inquest report did not bear the FIR number and the sections of law---Such fact invited attention that when the report was made at the police station in the shape of first information report, then why the inquest report was lacking the FIR number and the relevant sections of law---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable 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---Presence of eye-witnesses with the dead body was doubtful---Scope---Accused was charged for committing murder of the brother of the complainant by firing---Witnesses, were yet to explain as to who, out of the two i.e. complainant and eye-witness accompanied the dead body from the police station to the hospital and, as to who identified the dead body before scribe at the time the report was made and before the doctor at the time of post-mortem examination---Complainant when appeared before the Trial Court stated that he in the company of his brother after making the report came to their house and from their house they went to the spot for spot pointation on arrival of the Investigating Officer---Complainant further stated that initially the eye-witness was present at the time of spot pointation, and thereafter he went to the hospital after the dead body---Said portion of the statement could not be believed, as once the witnesses did not opt to accompany the dead body from the police station to the hospital then what urgency was there for the eye-witness to go to the hospital, that too, at a belated stage---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence--- Benefit of doubt---Contradictions in the statements of eye-witnesses--- Scope--- Accused was charged for committing murder of the brother of the complainant by firing---If the statement of complainant was taken to be correct regarding the presence of the eye-witness at the time of spot pointation, then how his name found mentioned in the column of identification at the time of post-mortem examination---Statement of both the witnesses when read in juxtaposition, the two contradicted each other to a greater extent, as the complainant stated that they both pointed out the spot to the Investigating Officer and that the recoveries were effected from the spot in their presence---Eye-witness when appeared before the Trial Court, he categorically stated that he was not present with the Investigating Officer and the complainant at the time of spot pointation---Complainant admitted his subsequent arrival to the spot---Overall impact of the statements of the witnesses gave an impression that the witnesses, more particularly, the eye-witness was not present on the spot---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---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---Benefit of doubt---Preliminary investigation--- Scope--- Accused was charged for committing murder of the brother of the complainant by firing---Presence of eye-witness was doubted as instead of absence at the time of post-mortem examination, the Medical Officer mentioned his name in the column of identification---Said aspect of the case led that the post-mortem was conducted earlier to the report made, and so the inquest report was prepared---Circumstances suggested that preliminary investigation had been made in the case---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

Javaid Akbar v. Muhammad Amjad and Jameel alias Jeela and another 2016 SCMR 1241 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention--- Appreciation of evidence---Benefit of doubt---Motive was not proved--- Scope--- Accused was charged for committing murder of the brother of the complainant by firing---Investigating Officer though investigated the matter from different angles, he did not take pains to collect any evidence in respect of the alleged motive---Investigating Officer visited the spot but he did not record the statements of any independent witness regarding the altercation between the parties, few days earlier to the incident---Complainant while reporting the matter stated that the altercation took place in the football ground, but he himself could not produce any witness who was present at the time of altercation in the ground---Such eventualities showed that the motive was an afterthought with attempt to connect the accused with the commission of offence---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

Hakim Ali v. The State 1971 SCMR 432 and Amin Ullah v. The State PLD 1976 SC 629 rel.

(h) Criminal trial---

----Motive---Scope---Absence or weakness of motive could not be taken into consideration as a sole factor to discredit the prosecution and to disbelieve the charge, but that once a motive was alleged then the prosecution was duty bound to establish the same---Failing which no one else but the prosecution would suffer.

Ahmad Farooq Khattak for Appellant.

Saif-ur-Rahman Khattak, A.A.G. for the State.

Salah-ud-Din Khan Marwat for Respondents.

YLR 2022 PESHAWAR HIGH COURT 1813 #

2022 Y L R 1813

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

FAZLE QADIR and others---Petitioners

Versus

FAZLE REHMAN and others---Respondents

Civil Revision No. 273-P of 2005, decided on 1st November, 2021.

Specific Relief Act (I of 1877)---

----Ss.12, 39, 42 & 54---Suit for specific performance of agreement to sell, cancellation of document, declaration and injunction---Concurrent findings of facts by two Courts below---Misreading and non-reading of evidence---Three suits were decided by Trial Court by a consolidated judgment decreeing those filed by respondent/plaintiff whereas suit for specific performance of agreement to sell, filed by petitioners/defendants was dismissed---Lower Appellate Court maintained judgment and decree passed by Trial Court---Validity---All documents admitted correct by plaintiff / respondent himself were not considered by two Courts below and by ignoring all such evidence, entries of record of rights recorded in the course of first settlement of the area were declared wrong and illegal---Basis of recording of such entries was also brought on record in evidence---Preponderance of evidence was available all going in favour of correctness of entries in revenue record---Revenue record which was prepared in the course of first settlement carried strong presumption of correctness---High Court set aside judgments and decrees passed by two Courts below in favour of respondent/plaintiff and suit filed of specific performance of agreement to sell filed by petitioners/defendants was decreed in their favour---Revision was allowed, in circumstances.

Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700; Samar Gul and others v. Mohabat Khan and others 2000 SCMR 974; Ghulam Muhammad and 3 others v. Ghulam Ali 2004 SCMR 1001; 2006 SCMR 50; 2008 SCMR 428; Nawab Khan and others v. Said Karim Khan and others 1997 SCMR 1840; Mazloom Hussain v. Abid Hussain and 4 others PLD 2008 SC 571 and Haji Allah Bakhsh v. Abdullah Khan and 4 others 2001 SCMR 363 rel.

Mujahid Farooq for Petitioners Nos. 1 to 6.

Gularam Khan, Special Attorney for Petitioner No. 7 in person.

Amir Sardar, Iftikhar Ahmad Nasir and Ikram Ali Khan for Respondents.

YLR 2022 PESHAWAR HIGH COURT 1874 #

2022 Y L R 1874

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

JOHAR ALI---Appellant

Versus

AMJAD ALI and another---Respondents

Criminal Appeal No.479-M and Criminal Revision No. 112-M of 2019, decided on 2nd June, 2021.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Ocular account---Scope---Accused was charged for making firing upon complainant party, due to which, brother of the complainant was hit and died---Motive behind the occurrence was that other brother of the deceased got recorded his statement as a witness in an earlier criminal case registered against the accused, due to which he was annoyed---Record revealed that eye-witness account of the occurrence had been offered by the complainant---Supporting evidence of last seen had been offered by a witness---Presence of the complainant could not be doubted just for the reason that the Medical Officer had, in his report of initial examination of the injured, stated that injured had been accompanied by witness---Medical Officer was not supposed to and he could not have mentioned all the people who had accompanied the injured to the hospital---Occurrence had taken place close to house of the deceased and beside witness he might have been accompanied by a number of people including the neighbours, but all of them could not have been mentioned by the Medical Officer and that also in such an emergency---Presence of the complainant along with his brother at the relevant time could not be disbelieved---Presence of complainant along with his deceased brother had also been mentioned by the other witness, in his statement under S.161, Cr.P.C. recorded same night at the place of occurrence without any delay---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal was dismissed accordingly.

2020 SCMR 319; 2021 PCr.LJ 373; 2021 YLR 52; 2021 YLR 95; 2021 PCr.LJ 479; 2011 SCMR 429; 2016 SCMR 2152; 2020 SCMR 595; 2013 YLR 895; 2019 YLR 1109; 2020 YLR 1423; 2021 SCMR 298; 2020 YLR 654 and 2021 PCr.LJ 705 ref.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Delay of fifty five minutes in lodging the report---Scope---Accused was charged for making firing upon complainant party, due to which, brother of the complainant was hit and died---Report in the case had been lodged by the complainant in the hospital after fifty five minutes of the occurrence, which could not in circumstances of the case be stated to be a delayed report---Arrival of the injured at the hospital shown as 07:45 p.m. and lodging of report at 07:55 p.m. would have been after initial management of the patient and thus the report in circumstances of the case was reasonably prompt---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal was dismissed accordingly.

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence--- Contradictions in the statements of witnesses---Scope---Accused was charged for making firing upon complainant party, due to which, brother of the complainant was hit and died---No doubt that certain minor contradictions in statements of complainant and witness of last seen evidence were found---Said two witnesses had been examined in the Court after more than four years of the occurrence---Occurring of such minor contradictions was quite natural---Minor contradictions had not been related to the actual occurrence but related to arrival of the complainant and his brother to the mosque as well, as such other matters which could not be called as discrepancy in material particulars of the case---Witnesses were examined after more than four years of the occurrence, therefore, a photographic narration of the occurrence could not be expected from them---Such minor contradictions in statements of the witnesses were not sufficient to entitle the accused to outright acquittal, but such minor weaknesses in the case of prosecution might be considered in awarding him the lesser punishment---Trial Court had rightly awarded life imprisonment to the accused under S.302(b), P.P.C. instead of a death penalty---Appeal was dismissed accordingly.

Khadim Hussain v. The State PLD 2010 SC 669; Muhammad Ilyas v. The State 2011 SCMR 460; Zulfiqar Ahmad v. The State 2011 SCMR 492 and Falak Sher v. The State 1999 SCMR 2432 rel.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Motive was proved---Scope---Accused was charged for making firing upon complainant party, due to which, brother of the complainant was hit and died---Motive behind the occurrence was that other brother of the deceased got recorded his statement as a witness in an earlier criminal case registered against the accused, due to which he was annoyed---Prosecution had also been able to successfully prove the motive in shape of Naqal Mad No. 11 dated 08.10.2014, which had been lodged by the deceased then alive himself against the accused and another person---In the said report, it was alleged that about six months back another deceased had been killed by accused and his co-accused due to unknown reasons---In respect of murder of said deceased a separate criminal case had earlier been registered vide FIR, a copy of FIR had also been exhibited in the case---Brother of the deceased in the case in hand had testified in the earlier case registered against the accused which fact had created a bad taste between the parties---Accused were also alleged to have threatened the complainant-party of dire consequences due to said statement and had also made aerial firing in front of house of the complainant party for intimidating them--- Prosecution had thereby established existence of motive on part of the accused for commission of the offence---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal was dismissed accordingly.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Absconsion of accused---Scope---Accused was charged for making firing upon complainant party, due to which, brother of the complainant was hit and died---Record showed that the accused had also remained absconder for more than two years---Absconsion by itself could not be held sufficient for recording conviction on a capital charge, but when other reliable evidence was available with the prosecution, then such a prolonged and unexplained absconsion might safely be taken into account as a corroboratory piece of evidence against an accused---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt--- Appeal was dismissed accordingly.

Riaz Hussain v. The State 2001 SCMR 177; Mawas Khan v. The State and another PLD 2004 SC 330 and Manzur Elahi v. The State PLD 1965 (W.P.) Lahore 656 rel.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Non-recovery of weapon of offence---Scope---Accused was charged for making firing upon complainant party, due to which, brother of the complainant was hit and died---Record showed that the weapon of offence i.e. Kalashnikov could not be recovered in the case, but the accused had remained absconder for more than two years and the possibility of disposing the weapon of offence during such period could not be ruled out---Testimony of witness of last seen evidence was also providing added vigor to the case of prosecution in that respect as said witness had seen the accused duly armed with Kalashnikov decamping from the spot immediately after the occurrence---Besides, six empty shells of Kalashnikov had also been recovered from the spot---Non-recovery of the weapon of offence in the case would hardly make any difference---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal was dismissed accordingly.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Source of light---Scope---Accused was charged for making firing upon complainant party, due to which, brother of the complainant was hit and died---Occurrence had taken place during night time and in respect of identity of the accused the Investigating Officer had taken in possession a source of light i.e. bulb vide recovery memo---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal was dismissed accordingly.

Shakil Ahmad Khan for Appellant (in Criminal Appeal No.479-M of 2019).

Said Hakim for Respondent No.1 (in Criminal Appeal No.479-M of 2019).

Alam Khan Adenzai, Asst: A.G. for the State (in Criminal Appeal No.479-M of 2019).

Said Hakim for Petitioner (in Criminal Revision No.112-M of 2019).

Alam Khan Adenzai, Astt: A.G. for the State (in Criminal Revision No.112-M of 2019)

Shakil Ahmad Khan for Respondent No.2 (in Criminal Appeal No.112-M of 2019).

YLR 2022 PESHAWAR HIGH COURT 1901 #

2022 Y L R 1901

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

Mst. SHAHEEN ZARI---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No.206-M, 198-M and Criminal Revision No. 31-M of 2020, decided 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---Scope---Accused was charged for committing murder of the deceased by firing---Admittedly, the report was lodged by the accused stating therein that an unknown person had entered her room at night time when she was sleeping with her kids whereas her husband was away from home for the purpose of repairing his dented vehicle---On getting sight of the stranger, she picked up pistol of her husband and fired at the intruder as result whereof he died at the spot---Place of the occurrence was established in light of recovery of dead body as well as blood, two crime empties of 30-bore and a spent bullet from residential room of the accused and she had not denied the said recoveries during her examination under S. 342, Cr.P.C.---Accused had also admitted murder of the deceased in her statement under S.342, Cr.P.C through a .30 bore pistol of her husband which was taken into possession---Murder of the deceased by the present accused inside her house was an admitted fact in view of her report as well as her statement under S.342, Cr.P.C.---High Court observed that High Court was not in agreement with findings recorded by the Trial Court in the impugned judgment while convicting her for the said murder---Circumstances established that the prosecution could not discharge its burden of proving the case against the accused, hence, accused was entitled to get the benefit of circumstances of the case which led a prudent mind to the conclusion that she had acted in her defence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention--- Appreciation of evidence---Right of private defence---Scope---Accused was charged for committing murder of the deceased by firing---Admittedly, the occurrence took place during nocturnal hours---Accused was present in her house along with her minor kids whereas her husband was away from the house---High Court observed that very act of surreptitious entry by a stranger armed with pistol at night time into the room of a young lady, who was all alone in her room, and his murder by her in exercise of her right of private defence was not only believable but the same was also inferable from the attending circumstances of the case because she had no other option at that critical situation but to fire at the intruder---Young lady in the company of her kids only could not expect that a trespasser armed with pistol had entered her room during nocturnal hours with a good intention, therefore, her act of firing at the deceased in the said situation could not be termed in excess than what was required at the relevant time---Accused being a female and alone in her room had no choice at the relevant time to act in a weighed and pondered manner for repulsing the deceased for protection of her life, honour and safety of her minor kids---Circumstances established that the prosecution could not discharge its burden of proving the case against the accused, hence, accused was entitled to get the benefit of circumstances of the case which led a prudent mind to the conclusion that she had acted in her defence---Appeal against conviction was allowed, in circumstances.

Maina v. The State PLD 1972 Lah. 129 and Mashal Khan v. The State PLD 1988 SC 25 rel.

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Call Data Record---Scope---Accused was charged for committing murder of the deceased by firing---Although it was also the case of prosecution that the accused had illicit relations with the deceased---In support of the said allegation CDR of SIM of the deceased and SIM allegedly used by accused had been brought on the record---Record showed that the Investigating Officer had taken into possession mobile phone from the accused vide recovery memo regarding which no Call Data Record was available on record to establish her contact with the deceased whereas there was no evidence on the record that SIM regarding which Call Data Record was obtained, was registered in her name---Prosecution, therefore, could not establish any telephonic contact between the accused and deceased through any convincing evidence---Accused had taken a plea in her defence which was to be taken in entirety and prosecution had failed to bring any evidence on record in rebuttal of the said version of the accused---In the light of the facts and circumstances of the case and evidence available on the record, prosecution could not discharge its burden of proving the case against the accused, hence, accused was entitled to get the benefit of circumstances of the case which led a prudent mind to the conclusion that she had acted in her defence---Appeal was allowed and accused was acquitted by setting aside convictions and sentences recorded by the Trial Court.

Zarid Khan v. Gulsher and another 1972 SCMR 597 rel.

Hafiz Ashfaq Ahmad for Appellants (in Criminal Appeal No.206-M of 2020).

Razauddin Khan, A.A.G. for the State (in Criminal Appeal No.206-M of 2020).

Muhammad Javaid Khan for Respondent No.2 (in Criminal Appeal No.206-M of 2020).

Muhammad Javaid Khan for Appellant (in Criminal Appeal No.198-M of 2020).

Muhammad Javaid Khan for Petitioner (in Criminal Revision No.31-M of 2020).

Razauddin Khan, A.A.G. for the State (in Criminal Revision No.31-M of 2020).

Hafiz Ashfaq Ahmad for Respondent/convict (in Criminal Revision No.31-M of 2020).

YLR 2022 PESHAWAR HIGH COURT 1945 #

2022 Y L R 1945

[Peshawar]

Before Lal Jan Khattak, J

MARIAM AHMED---Petitioner

Versus

RAJ MUHAMMAD and 12 others---Respondents

Civil Revision No.742-P of 2020 with C.Ms. Nos. 1223 of 2020 and 23 of 2021, decided on 24th January, 2022.

Civil Procedure Code (V of 1908)---

----O. XLIII, R. 3---Notice before presentation of appeal---Lis to be decided on merit---Petitioner filed a suit against respondents for declaration and permanent injunction along with an application seeking therein interim relief restraining respondents from raising construction---Trial Court dismissed the application---Petitioner preferred appeal which was also dismissed by Appellate Court on the sole ground that petitioner did not issue notice to respondents for filing appeal as envisaged under O.XLIII, R. 3, C.P.C.---Held, that failure of petitioner to serve notice to respondents under O. XLIII, R. 3 of C.P.C. would not be made a ground to dismiss petitioner's appeal if same was admitted and pursuant thereto notice was issued by appellate court to respondents for appearance---Record showed that after filing appeal appellate court issued notice of the same to respondents who accordingly appeared and contested appeal but same was dismissed for failure of petitioner to act in line with provisions of O. XLIII, R. 3 C.P.C.---Respondents appeared pursuant to notice issued to respondents by appellate court---High court directed that petitioner's appeal was to be decided on merit instead of its dismissal on technicalities which exercise of jurisdiction by appellate court could not be countenanced---Civil Revision was accepted.

1997 SCMR 414 rel.

Syed Hamad Ali Shah for Petitioner.

Imran for Respondent No.1.

YLR 2022 PESHAWAR HIGH COURT 2108 #

2022 Y L R 2108

[Peshawar (D.I. Khan Bench)]

Before Sahibzada Asadullah, J

MUHAMMAD SUHAIL----Petitioner

Versus

The STATE and others----Respondents

Criminal Miscellaneous Bail No.192-D of 2021, decided on 7th May, 2021.

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

----S.497---Penal Code (XLV of 1860), Ss.302, 324 & 353---Anti-Terrorism Act (XXVII of 1997), S.7---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty---Act of terrorism---Unlicensed possession of arms---Bail, refusal of---Scope---Accused was alleged to have murdered a person and injured the complainant---Matter was promptly reported, where the accused was directly charged---Accused was arrested from the spot soon after the incident along with the weapons used and the motorcycle owned---Collected empties along with recovered pistol were sent to the Forensic Laboratory to ascertain as to whether those were fired from the recovered pistol or otherwise---Chemical Examiner after examining the same had opined that the same were fired from one and the same weapon---Petitioner could not bring on record mala fide on the part of complainant and as such no other presumption could be drawn---Accused was prima facie connected with the commission of offence---Petition for grant of bail was dismissed, in circumstances.

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

----S.497---Bail---Tentative assessment---Scope---Court while seized of a bail matter is to make tentative assessment and deeper appreciation is not warranted but application cannot be heard and decided in vacuum---Court of law is to apply its judicial mind to the collected evidence even at bail stage to avoid miscarriage of justice.

Muhammad Ismail Alizai, Zafar Iqbal Awan and Ahmad Shahbaz Alizai for Petitioner.

Rehmatullah, A.A.G. for the State.

Syed Tahseen Alamdar for the Complainant.

YLR 2022 PESHAWAR HIGH COURT 2160 #

2022 Y L R 2160

[Peshawar]

Before Musarrat Hilali, J

ZAIR SHAH and 6 others---Petitioners

Versus

NOORAN SHAH and 9 others---Respondents

Writ Petition No. 6787 of 2019, decided on 21st June, 2021.

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

----S. 12(2)---Bar to further suit---Recording of evidence---Scope---Petitioners filed a suit for declaration and partition which was decreed ex parte---Respondent filed an application under S. 12(2), C.P.C. which was dismissed by the Trial Court---Appellate Court allowed the appeal and the application under S. 12(2), C.P.C. was remanded to the Trial Court to record evidence before disposal of the application---Validity---Respondent had alleged serious allegations against the petitioners on the ground that the judgment and decree was obtained by playing fraud on the Court as despite the fact that he was in possession of the suit property since long but still he was not made a party in the case filed before the Trial Court---In view of the claims made by respondent, the Trial Court ought to have given an opportunity to the respondent to lead evidence---No doubt, decision on application under S. 12(2), C.P.C. without recording evidence was not against the law, however it depended on the facts and circumstances of each case---Specific allegations of fraud and misrepresentation were alleged against the petitioners which warranted evidence---No material illegality was found in the impugned judgment---Constitutional petition was dismissed.

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

----Art. 181---Limitation---Scope---Where no specific limitation is provided then the provision of Art. 181 of Limitation Act, 1908, will attract.

A. Hashim Khan for Petitioners.

Afroz Ahmad for Respondents.

YLR 2022 PESHAWAR HIGH COURT 2210 #

2022 Y L R 2210

[Peshawar]

Before Lal Jan Khattak, J

SOHAIL AHMAD---Petitioner

Versus

The STATE and another---Respondents

Cr.M.B.A. No.126-P of 2022, decided on 31st January, 2022.

Criminal Procedure Code (V of 1898)---

----S. 497---Prevention of Electronic Crimes Act (XL of 2016), Ss.16, 21 & 24---Penal Code (XLV of 1860), Ss. 419 & 506---Unauthorized use of identity information, modesty of natural person, cyber stalking, cheating and criminal intimidation--- Bail, grant of---Unexplained delay in lodging FIR---Offence not falling in prohibitory clause of S.497, Cr.P.C.---Accused was arrested for making and sharing obnoxious videos of wife of complainant---Validity---Delay of five months in registration of FIR was not explained which had cast reasonable doubt on prosecution case---Offences allegedly committed under Prevention of Electronic Crimes Act, 2016, by accused were punishable up to 3 years---Grant of bail in offences which do not fall within the restrictive clause of S.497, Cr.P.C. is a rule and refusal thereof is an exception---No material was available on record which could bring petitioner's case within exception---No allegation that accused shared naked videos of complainant's wife with other persons---High Court made tentative assessment of case record which led to believe that involvement of accused regarding his guilt in crime as alleged needed further probe---Bail was allowed in circumstances.

Shaiber Khan for Petitioner.

Qazi Babar Irshad, DAG for the State along with respondent No.2 in person.

YLR 2022 PESHAWAR HIGH COURT 2252 #

2022 Y L R 2252

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim, J

Syed ZANON MIAN and 4 others---Appellants

Versus

Mst. MISSLUNISA---Respondent

Criminal Appeal No. 229-M of 2019, decided on 10th September, 2020.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 8---Criminal Procedure Code (V of 1898), S. 367---Prevention of illegal possession of property---Delivery of possession of property to owner---Language of judgment---Contents of judgment---Scope---Appellants challenged order passed by Trial Court whereby they were acquitted but were ordered to restore possession of complainant's share---Section 8 read with subsections (2) and (3) of S. 3 revealed that the Court in case of conviction of the accused could pass the order for restoration of the

property but in the present case the Trial Court, after recording evidence, acquitted the accused on the one hand and on the other hand ordered for restoration of possession of the land to the complainant---Conviction was sine qua non for handing over the possession under S. 8 of the Illegal Dispossession Act, 2005---Findings of the Trial Court were not in consonance with the provisions of the Illegal Dispossession Act, 2005, as well as S. 367, Cr.P.C., requiring the Court to give specific findings for determination of a criminal controversy---Judgment of the Trial Court, being illegal, was liable to be set aside---Appeal was allowed and the case was remanded to the Trial Court to pass an appropriate judgment. [p. 2255] A & B

Masood-ur-Rehman for Appellants.

Muhammad Nabi for Respondent.

Asad-ur-Rehman as Amicus Curie.

YLR 2022 PESHAWAR HIGH COURT 2287 #

2022 Y L R 2287

[Peshawar]

Before Shakeel Ahmad, J

MUHAMMAD GHAFFAR and others---Petitioners

Versus

ARIF MUHAMMAD---Respondent

Civil Revision No. 714-P of 2018, decided on 24th March, 2022.

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), S. 115--- Suit for specific performance of agreement to sell---Concurrent findings of two Courts below---Reciprocal promise---Suit filed by respondent/plaintiff for specific performance of agreement to sell executed by petitioners/defendants was decreed in his favour---Validity---Contract/agreement to sell contained reciprocal promise that one of them could not be performed or that its performance could not be claimed till the other had been performed---Obligation to pay remaining balance sale consideration was dependent and would occur on transfer of suit property through mutation on the part of petitioners/ defendants which was not performed till filing of suit due to their denial of execution of agreement to sell with respondent/plaintiff---Revision had a very narrow scope and required High Court to examine whether Courts below failed to exercise jurisdiction vested in them or had acted in exercise of jurisdiction illegally, without material irregularities and had misread evidence brought on record by the parties, otherwise not---Judgments and decrees passed by two courts below were based on proper appreciation of evidence on record---High Court declined to interfere in concurrent findings of facts by two Courts below as there was no misreading or non-reading of evidence available on record---Revision was dismissed, in circumstances.

Muhammad Sher v. Maula Bakhsh 2014 CLC 1745; Meher Din (represented by his legal heirs v. Dr. Bashir Ahmad Khan and 2 others 1985 SCMR 1 and Muhammad Ibrahim (deceased) through LRs and another v. Taza Gul and others 2020 SCMR 2033 rel.

Muhammad Isa Khan Khalil, for Petitioners.

Abdul Sattar Khan and Ahmad Ali Khan for Respondent.

YLR 2022 PESHAWAR HIGH COURT 2295 #

2022 Y L R 2295

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar, J

SHAHZADA AMAN-E-ROOM and others---Petitioners

Versus

SHER BAHADAR KHAN and others---Respondents

Writ Petition No. 548 of 2007, decided on 25th April, 2022.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Disputed questions of fact---Approbate and reprobate, principle of---Applicability--- Scope--- Petitioners assailed orders passed by Board of Revenue declining to cancel mutations in question---Validity---Property in question was not described, therefore no specific possession could be handed over or described in revenue papers---Petitioners themselves accepted specification of Khsara numbers in favour of respondents/ decree holders before Federal Land Commission, where revision petitions were pending---Principle of approbate and reprobate had come into play as petitioners were not allowed to blow hot and cold in the same breath---Admission on the part of petitioners regarding purchase of property from some of decree holders amounted to an estoppel against them, as it precluded a person from denying truth of a narration earlier made by him, keeping in view the peculiar facts and circumstances of the matter---High Court in exercise of jurisdiction under Art. 199 of the Constitution declined to interfere in the matter as there were some factual aspects and the same required recording of evidence---Petitioners failed to point out any illegality, irregularity or jurisdictional defect in the orders assailed by them---Constitutional petition was dismissed, in circumstances.

Miangul Akbar Zeb and others v. Muhammad Khalid Khan and others 2019 YLR 2432 and Writ Petition No.357-M of 2012 and Writ Petition No. 356-M of 2012 ref.

Muhammad Khalid Khan v. Miangul Akbar Zeb and others Civil Petitions Nos.74 and 75 of 2016 distinguished.

Fida Hussain v. Mst Saiqa 2011 SCMR 1990 and Government of Punjab v. Ghulam Nabi PLD 2001 SC 415 rel.

Sher Muhammad Khan for Petitioners.

Razauddin Khan, A.A.G for Official Respondents.

Muhammad Amin Khan, Saiful Malook Saif and Muhammad Ali Khan, for Private Respondents.

YLR 2022 PESHAWAR HIGH COURT 2325 #

2022 Y L R 2325

[Peshawar (Abbottabad Bench)]

Before Wiqar Ahmad and Kamran Hayat Miankhel, JJ

AMANAT ALI KHAN JADOON---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commission, Islamabad and 5 others---Respondents

Writ Petition No. 300-A of 2022, decided on 9th March, 2022.

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

----S. 39---Election dispute---Electoral list---Correction---Notice, non-issuance of---Grievance of petitioner was that his name was shifted from voter list of one area to voter list of other without serving him any notice---Validity---More than ample time for correction of electoral rolls was given to petitioner by Election Commission for correction, deletion or inclusion of his name in the concerned electoral area---Petitioner slept over his right who all of a sudden came out of his deep slumber at the eleventh hour and that too after announcement of election schedule---One should be vigilant about ones rights under the general law---High Court declined to interfere in electoral rolls finalized by Election Commission---Constitutional petition was dismissed, in circumstances.

(b) Constitution of Pakistan---

----Part-II, Chapter 1--- Fundamental Rights are subject to reasonable restrictions.

Muhammad Irshad v. Government of Khyber Pakhtunkhwa and others PLD 2016 Pesh. 170; Haider Ali Khan Jamali v. Returning Officer/ADC Jaffar Abad and 2 others 2013 CLC 1381; Nasir Khan v. Election Commission of Pakistan and 3 others dated 29.11.2021; Muhammad Ismail v. Election Commission of Pakistan and 3 others decided on 17.11.2021 and Yousaf Ali v. Election Commission of Pakistan through Chief Election Commission and 4 others 2016 MLD 1881 rel.

Tahir Hussain Lughmani for Petitioner.

Mrs. Isma Arooj, Law Officer for Respondent No. 1.

YLR 2022 PESHAWAR HIGH COURT 2482 #

2022 Y L R 2482

[Peshawar]

Before Musarrat Hilali, J

ABDUL GHAFFAR---Petitioner

Versus

SHOUKAT---Respondent

Writ Petition No. 860 of 2022, decided on 4th July, 2022.

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

----S. 25---Custody of minor---Welfare of minor--- Choice of minor--- Scope---Petitioner assailed the concurrent dismissal of his application for custody of minor (his biological son)---Wife of the petitioner was murdered for which he was charged and he was ultimately acquitted but in the meantime the custody of the minor was retained by minor's maternal grandfather---Grandfather of the minor had died---Minor was in custody of his uncle (خالو) but the Family Court had granted custody to the respondent (maternal uncle), who lived abroad---Statement of minor charging his father for the murder of his mother indicated that he was being brought up in a hostile environment where respondents were sowing seeds of enmity and hatred in the mind of minor against his father---Choice of minor was, no doubt, a relevant factor but in the present case minor was influenced by respondents to make a particular choice and therefore, he was not in a position to form intelligent preference---As far as criminal case against petitioner was concerned, the acquittal had proved his innocence---Second wife of the petitioner had assured the court that she would leave no stone unturned in the best upbringing of the minor---High Court observed that welfare of the minor lay with his father---Constitutional petition was allowed and the custody of minor was handed over to the petitioner, in circumstances.

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

----S. 25---Custody of minor---Welfare of minor---Scope---Decision on question of welfare of minor child has to be considered on its own merit in the background of relevant facts and circumstances---Other decided cases can hardly serve as binding precedent in so far as the factual aspects of the cases are concerned.

----S. 25---Custody of minor--- Welfare of minor--- Scope--- Paramount consideration for the custody of a minor is the welfare and well-being of the child and other considerations are subordinate---Welfare of minor means a child's health, education, physical, mental and psychological development.

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

----S. 25---Custody of minor---Choice of minor---Scope---Choice of a minor is a factor to be taken into consideration but it cannot be made a decisive factor in matters relating to custody of minor.

Jan Alam Afridi for Petitioner.

Jehangir Alam for Respondent.

Quetta High Court Balochistan

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 110 #

2022 Y L R 110

[Balochistan]

Before Jamal Khan Mandokhail, C.J. and Abdul Hameed Baloch, J

ARBAB NIZAM UD DIN KASI---Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and others---Respondents

Constitutional Petition No. 1506 of 2019, decided on 11th August, 2020.

Land Acquisition Act (I of 1894)---

----S.18---Reference to Court---Scope---Petitioner sought enhanced rate of compensation of structural value of his bungalow which was being acquired for the purpose of widening of a bypass---Validity---Claim of the petitioner was only for compensation of structural value of the bungalow for which petitioner had alternate remedy under S.18 of Land Acquisition Act, 1894---Constitutional petition, being not maintainable, was dismissed.

Ch. Muhammad Ismail v Fazal Zada, Civil Judge, Lahore PLD 1996 SC 246 rel.

Azmatullah Kasi for Petitioner.

Arbab Tahir, Advocate General for Respondents.

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 173 #

2022 Y L R 173

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

SABIR HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.(s) 149 of 2019 and Criminal Revision Petition No.(s) 36 of 2019, decided on 19th October, 2020.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Last seen evidence---Scope---Accused was charged that he and co-accused committed murder of the son of the complainant---Record transpired that no one came forward to furnish ocular account to that incident, thus, it was an unseen occurrence---Last seen evidence had been furnished by one witness, who stated that accused and two other persons took the deceased on a motorcycle and corps of the deceased was found from the water tank---Said story narrated by the witness had neither been corroborated from the FIR as well as disclosure of the accused before the police nor prosecution produced any other corroborating evidence in that behalf---Version of said witness established his status as a witness of last seen, which was an afterthought and seemed concocted and fabricated one---Had said witness seen the accused on the very first day of missing of deceased he would have definitely disclosed before the police regarding missing of the deceased---Said witness would have also inquired from the accused about the whereabouts of the deceased, but he did not lodge the report on the first day rather his statement was recorded by the police after three days from missing of the deceased, despite the fact that said witness was a nephew of the complainant, thus, said belated story of witness regarding last seen of the deceased in the company of the accused was unbelievable and not trustworthy---Appeal against conviction was allowed, in circumstances.

(b) Criminal trial---

----Circumstantial evidence---Scope---If the case was based on circumstantial evidence the prosecution must ensure that the circumstances from which the inference of guilt was sought to be drawn must be cogently and firmly established---Circumstances must unerringly point towards the guilt of the accused and when taken cumulatively should form a chain so complete, that it must demonstrate in all probabilities that the crime was committee by the accused.

Sheikh Muhammad Amjad v. State PLD 2003 SC 704 rel.

----Last seen evidence---Scope---Admittedly, the last seen evidence was the weakest type of evidence unless corroborated by other strong pieces of evidence---Awarding punishment of capital charge on the basis of evidence of last seen was difficult.

Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 and Muhammad Abid v. The State and another PLD 2018 SC 813 rel.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay in lodging the FIR---Effect---Accused was charged that he and co-accused committed murder of the son of the complainant---In the present case, the complainant had knowledge about missing of the deceased on 13.07.2019, but despite that, the he did not lodge the report and the report was lodged on 16.07.2019 at 10:30 a.m.---Nothing came on record about lodgement of the report of missing of the deceased by the complainant in Levies Thana---Record showed that the dead body of the deceased was recovered from the water tank of the Madrasa on 16.07.2019 at 6:30 a.m., and the FIR was lodged on the same date at 10:30 a.m. with a delay of four hours from the recovery of dead body of the deceased---Lodgement of the FIR with delay by the complainant created a reasonable doubt in the prosecution case---Appeal against conviction was allowed, in circumstances.

Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127 rel.

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

----Arts. 37, 39 & 40---Disclosure of accused before the police---Scope---Confession made by accused person, while he was in police custody, was not admissible, however, if something related to the case was recovered or any fact was discovered in consequence of information conveyed by the accused person then the information so received would be admissible in evidence to the extent of recovery if corroborated with other piece of evidence within the purview of Art. 40 of the Qanun-e-Shahadat, 1984 because then the presumption would be towards its truthfulness---If nothing in consequence of the disclosure was recovered or discovered then the information so received by itself would not be admissible.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of incriminating material on the pointation of accused---Scope---Accused was charged that he along with his co-accused committed murder of the son of the complainant---Record showed that on the pointation of accused the motorcycle used in the commission of the alleged offence was recovered from his house and further recovered a piece of rope and chappal of the deceased and plastic bag from the place of occurrence and the same were taken into possession through recovery memo---Official witness stated during cross-examination that the recovered articles were not sealed---No sealed parcel was made by the Investigation Agency---Alleged rope and chappal were easily available in the village or at any place---Nothing on the file that the piece of rope was used/ caused the death of the deceased---Imperatively, recovery of the articles could not be termed as discovery, when it was not recovered from any hidden place---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

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

----Ss. 302 & 34---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-i-amd, common intention---Appreciation of evidence---Delay in disclosure made by accused before the police---Scope---Accused was charged that he and co-accused committed murder of the son of the complainant---Record showed that the accused was arrested and the alleged disclosure was made by the accused with a delay of 14 days under the custody of the police---Said disclosure was not made in the presence of Magistrate---In the absence of any strong circumstantial piece of evidence, such disclosure was of no legal value---Appeal against conviction was allowed, in circumstances.

(h) Criminal trial---

----Circumstantial evidence---Scope---To base conviction on circumstantial evidence, interlinked chain of credible and cogent corroborative evidence was to be available on the record.

Muhammad Ashraf Abro for Appellant (in Criminal Appeal No.(s) 149 of 2019).

Hasnain Iqbal Minhas for the Complainant (in Criminal Appeal No.(s) 149 of 2019).

Hasnain Iqbal Minhas for Petitioner (in Criminal Revision Petition No.(s) 36 of 2019).

Muhammad Ashraf Abro for Respondent (in Criminal Revision Petition No.(s) 36 of 2019).

Jamil Akhtar Gajani, Assistant Prosecutor General (APG") for the State (in Criminal Appeal No.(s) 149 and Criminal Revision Petition No.(s) 36 of 2019).

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 295 #

2022 Y L R 295

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Abdul Hameed Baloch, JJ

ISHAQUE---Appellant

Versus

NOOR AHMED and others---Respondents

Criminal Acquittal Appeal No. 350 of 2015, decided on 13th August, 2020.

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

----Ss. 324, 148, 149 & 109---Attempt to commit qalt-i-amd, rioting, armed with deadly weapon, abetment---Appreciation of evidence---Appeal against acquittal---Contradiction in medical and ocular evidence---Related witnesses---Scope---Appellant assailed the acquittal of accused persons--- Medico Legal Certificate transpired that the injuries on the person of complainant were 4/5 days old, which totally belied the ocular account---Medical evidence was a corroborative/supportive piece of evidence and by itself could not identify the accused, but it carried weight---Eye-witness stated that the firing was made from the distance of two feet while as per Medical Legal Certificate there was burning around the wound, meaning thereby that the fire was made from 4/5 feet---Bloodstained clothes and earth were received in the Forensic Laboratory after 17 days of the occurrence---Firing was allegedly made by nine persons while the prosecution secured only 4 empties from the spot and the same were not even sent to the Arms Expert---Witnesses were closely related to the complainant---Nothing was recovered from the possession of the accused persons---Appeal against acquittal was dismissed, in circumstances.

Mst. Anwar Begum v. Akhtar Hussain alias Kaka 2017 SCMR 1710 and Zaheer Sadiq v. Muhammad Ijaz 2017 SCMR 2007 ref.

Barkat Ali v Muhammad Asif 2007 SCMR 1812 and Muhammad Irshad v. The State 1999 SCMR 1030 rel.

(b) Criminal trial---

----Evidence---Corroboration---Scope---Rule of caution requires for independent corroboration where enmity exists between the parties.

----Proof---Duty of prosecution---Scope---Prosecution is bound to prove its case against the accused beyond reasonable doubt.

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

----S. 417---Appeal against acquittal---Scope---Order of acquittal is not to be interfered because the presumption of innocence of accused further strengthens by acquittal.

Bahuddin Kakar for Appellant.

Jamil Agha for Respondents Nos. 1 to 5.

Muhammad Younas Mengal, Additional Prosecutor General for the State.

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 406 #

2022 Y L R 406

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Abdullah Baloch, JJ

SORAT KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 52 of 2020, decided on 28th September, 2020.

(a) Criminal trial---

----Evidence--- Non-exhibiting material evidence--- Scope--- Non-exhibiting of material piece of evidence had made the case of prosecution defective and it appeared that the Prosecutor appearing in the trial court on behalf of State had acted carelessly, intentionally or unintentionally, but damaged the case of prosecution.

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

----Ss. 302, 324 & 427---Explosive Substances Act (VI of 1908), Ss. 3, 4 & 5---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, causing explosion likely to endanger life or property, keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, act of terrorism---Appreciation of evidence---Circumstantial evidence---Scope---Accused was charged for causing explosion on the convey of a Judge, due to which one child died and thirty seven persons got injured---Record showed that soon after the blast, the Bomb Disposal Team visited the place of occurrence and opined that the explosive material of 40/50 Kgs were installed in a Alto Car and the same was exploded through remote control---Sole clue which led the police to arrest and investigate the accused was the ownership of Alto Car---Allegedly, the accused was the purchaser and last possessor of the said car---Without mentioning the details of vehicle it could not be presumed that the said Alto vehicle was the same, which was used in the crime---Statement of seller of vehicle/witness was also very much important for the case of prosecution, who brought on record that in the year 2015 two persons including the accused approached him for the purchase of vehicle which was sold out to them at sale consideration amount of Rs.1,20,000/----Statement of that witness showed that he had absolutely failed to mention the exact date, time or month when such transaction had taken place---Even said witness had mentioned wrongly the year of transaction as 2015 while the incident had taken place on 11 November 2014---Statement of that witness was also silent to the effect that from whom he had purchased the said vehicle and for what time period such vehicle had remained in his possession and was subsequently sold out---Said witness had also failed to disclose the further details of vehicle including the chassis and engine numbers and to bring on record that as to whose name was mentioned in the registration documents and transfer letter; witness did not produce any Iqrar Nama or agreement establishing that the vehicle in question was earlier purchased by him and subsequently he sold out the same to the accused---Circumstances established that the prosecution had failed to substantiate the charge against the accused through confidence inspiring evidence---Appeal against conviction was allowed, in circumstances.

----Ss. 302, 324 & 427---Explosive Substances Act (VI of 1908), Ss. 3, 4 & 5---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, causing explosion likely to endanger life or property, keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, act of terrorism---Appreciation of evidence---Withholding material evidence---Scope---Accused was charged for causing explosion on the convey of a Judge, due to which one child died and thirty seven persons got injured---Record showed that the prosecution had failed to link the purchaser or seller with the other as number of persons against whom it was asserted that they remained previous owners of the vehicle were neither associated in the investigation nor produced during trial---Even the executants of sale/purchase agreements and receipt had not been produced, thus such documents could not be taken into consideration---Prosecution had failed to associate in the investigation number of persons against whom the prosecution had asserted that prior to purchase of vehicle in question by the accused, the same remained in possession of the said persons as owners for certain period---Prosecution failed to produce any witness who was the central figure and the entire story revolved around him, then the prosecution story would become doubtful and could not be believed in toto---No explanation on the part of prosecution was available that as to why the evidence of those witnesses was withheld, therefore a presumption under Art. 129(g) of Qanun-e-Shahdat, 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---Circumstances established that the prosecution had failed to substantiate the charge against the accused through confidence inspiring evidence---Appeal against conviction was allowed, in circumstances.

Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327 rel.

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

----S.164---Confession---Voluntariness---Scope---Confession must not only be voluntary, but it must also be true---In order to ascertain its truthfulness of confession, it was necessary to examine and compare the same with the rest of the prosecution evidence to exclude any possibility or probability of any doubt qua its true character---Until and unless the confessional statement appeared to have been recorded voluntarily, without duress, coercion and inducement, it could neither be taken into consideration nor could be made basis for awarding conviction to an accused.

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

State v. Minhun alias Gul Hassan PLD 1964 SC 813 rel.

(f) Criminal trial---

----Extra-Judicial confession---Scope---Extra-Judicial confession is a weak piece of evidence and court to rely on the same would expect sufficient and reliable corroboration.

Sarfraz Khan v. The State 1996 SCMR 188; Muhammad Rafiq v. The State 2009 YLR 1279 and Wazir Muhammad and another v. State 2005 SCMR 277 rel.

(g) Criminal trial---

----Circumstantial evidence--- Scope---Circumstantial evidence must be of the nature where all circumstances must be so inter-linked making out a single chain, an unbroken one, where one end of it touches the dead body of murdered and the other the neck of the accused---Any missing link in the chain would destroy the whole and would render the same unreliable for recording conviction.

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

Baha-ud-Din Sial Kakar for Appellants.

Muhammad Younas Mengal, Additional P.G. for the State.

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 469 #

2022 Y L R 469

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

Master MUHAMMAD NASEEM---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.34 of 2019, decided on 12th October, 2020.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Accused was charged for committing murder of father of complainant by firing---Ocular account of the incident had been furnished by complainant/son and widow of the deceased---Complainant mostly reiterated the contents of his fard-e-bayan, wherein he had stated that on the day of occurrence, he along with his other family members were present in his house, when the door of the house was knocked by the accused deceased was prohibited by his mother not to go to the door due to extreme annoyance of accused but despite that deceased went out of, where scuffle took place---Complainant came out from his house, after hearing fire shot and found his father lying in the pool of blood, while the accused holding pistol in his hand escaped from the place of occurrence in a motorcycle---Complainant contradicted his statement as contained in the fard-e-bayan, where he mentioned that on the way to the hospital his father succumbed to the injuries, while in his court statement he stated that doctor after examination disclosed that his father had died---According to complainant at the relevant time the neighbours were gathered at the spot but neither any neighbour was interrogated nor produced in the Trial Court by the prosecution---Prosecution had failed to produce the persons who had taken the deceased to hospital---Widow of the deceased also contradicted the statement of complainant and stated that initially her husband was being shifted to a private hospital from where he was being taken to civil hospital but on the way to civil hospital he succumbed to the injuries---Widow of deceased in her cross-examination stated that complainant disclosed to her that initially the deceased was shifted to private hospital in injured condition and thereafter he was taken to civil hospital---Statements of both the said witnesses had fully been contradicted by another witness, who claimed to be the witness of disclosure of the accused recorded during investigation, wherein allegedly the accused had not only confessed his guilt but also got recovered the crime weapon from the roof of the house of deceased---Statements of both the witnesses were silent that the accused had thrown the pistol on their roof rather they in a specific terms stated that the accused while holding the pistol escaped from the place of occurrence on a motorcycle---Comparative study of both the statements of complainant and widow and the statement of other witness made the presence of both the witnesses doubtful at the relevant time and also the recovery of crime weapon on the pointation was 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.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay in disclosure made by the witness---Scope--- Accused was charged for committing murder of father of complainant by firing---In the present case, a witness had claimed to be the witness of disclosure of the accused recorded during investigation, wherein allegedly the accused had not only confessed his guilt, but also got recovered the crime weapon from the roof of the house of deceased---Record showed that the alleged recovery of crime weapon was effected after 20-days of incident from the roof of the house of complainant party, thus, it was beyond imagination that the said pistol remained on the roof of complainant party and no one had seen it and even after 20-days its condition was not deteriorated---Even otherwise, the Investigating Officer admitted in his cross-examination that the alleged recovery of pistol was not effected in his presence---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.

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-i-amd---Appreciation of evidence---Benefit of doubt--- Accused was charged for committing murder of father of complainant by firing---In the present case, both the complainant and widow of deceased in specific terms stated in their statements that on hearing the firing shots, when they came out from their house, they had seen the accused holding pistol in his hand---Admittedly both the said witnesses were also on the target of accused, but he let them free and escaped from the place of occurrence---Said fact did not appeal to the logic that by killing a person in presence of his blood relations, the accused being armed with sophisticated weapon would not attempt to cause any injury/kill the prosecution witnesses leaving them for evidence to be hanged---Ocular testimony of the related/interested prosecution witnesses and false implication of the accused by the witnesses could not be ruled out of consideration as the accused while recording his statement under S.342, Cr.P.C., had taken specific plea of his false implication by witnesses---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 Farooq v. State 2006 SCMR 1707 and Dohlu v. State 2002 PCr.LJ 690 rel.

(d) Criminal trial---

----Medical evidence---Scope---Medical evidence was only a supporting piece of evidence and the same could not be the substitute of direct evidence.

(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. [p. 474] H

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Zahoor Hassan Jamote for Appellants.

Yahya Baloch, Additional, P.G. for the State.

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 570 #

2022 Y L R 570

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ

BABAR JAHANGIR and another---Appellants

Versus

NADIR ALI---Respondent

Regular First Appeal No. 52 of 2018, decided on 31st February, 2020.

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2, 3---Suit for recovery ---Application to appear and defend the suit---Limitation---Application for leave to defend the suit was dismissed by the Trial Court declaring the same as barred by time and subsequently decreed the suit of the respondent---Held, that appellant appeared before the Trial Court and copy of plaint was supplied to him---Application for leave to defend was filed within ten days of the time when he was provided copies---Service in the summary suit was to be effected through summons available in the Appendix 'B' of Form-4 of the Civil Procedure Code, 1908, wherein it was mentioned that "within 10 days from the service" the defendant had to obtain leave to appear and defend the suit---Record revealed that the service, in the present case, was effected on 16-03-2018, therefore, within ten days meant excluding 16-03-2018, the date of obtaining of leave to appear and defend, was 26-03-2018---Application for leave to appear and defend the suit, therefore, had been filed within the prescribed period of limitation---High Court set aside impugned decree and judgment, and remanded the matter---Appeal was disposed of accordingly.

Muhammad Zakria Khilji for Appellants.

Muhammad Ismail Baloch for Respondent.

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 694 #

2022 Y L R 694

[Balochistan (Sibi Bench)]

Before Nazeer Ahmed Langove and Rozi Khan Barrech, JJ

MUHAMMAD AMEEN---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 2 of 2021, decided on 11th February, 2021.

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

----S. 9(b)---Possession of narcotics---Appreciation of evidence---Prosecution case was that 520 grams of baked charas was recovered from personal possession of the accused---Prosecution, in order to substantiate its case produced and examined four witnesses in all---Record transpired that all the said witnesses were consistent on all material aspects---No distinct discrepancy was noticed to spoil the credibility of their testimony---Said witnesses were subjected to cross-examination by the defence, but their testimony was not shattered---From the evidence, the mode and manner of arrest of accused leading to the recovery of narcotic had been proved---Prosecution evidence was unanimous with regard to the arrest of the accused, place of the occurrence, quantity of the recovered charas and to that extent, the evidence of the prosecution was also inspiring confidence---No proof of enmity with the complainant and the prosecution witnesses had been brought on record---Competence of prosecution witnesses being officials was rightly believed---Accused failed to produce any tangible material to rebut the trustworthy and confidence inspiring evidence of the prosecution witnesses---Circumstances established that the prosecution had successfully proved the guilt of the accused---Appeal against conviction was dismissed accordingly.

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

----S. 9(b)---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotics---Appreciation of evidence---Non-association of private witnesses at the time of arrest of accused and recovery of narcotics---Scope---Prosecution case was that 520 grams of baked charas was recovered from personal possession of the accused---No private person was joined in recovery proceedings except Police Officials---Application of S.103, Cr.P.C., had been excluded by S. 25 of the Act, 1997 in narcotic cases--- Appeal against conviction was dismissed accordingly.

Zafar v. The State 2008 SCMR 1254 rel.

----S. 9(b)--- Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Chemical analysis---Delay of four days in sending samples of contraband for analysis---Effect---Prosecution case was that 520 grams of baked charas was recovered from personal possession of the accused---Parcel was sent to the chemical examiner with delay of four days and it was kept at police station hence that the same was not in safe custody---Record showed that the alleged recovery was effected on 23.07.2020 and the parcel was received by the Forensic Science Laboratory on 27.07.2020---Although there was a minor delay in sending the parcel to the Chemical Examiner but the Rules in that respect were directory and not mandatory---Even otherwise there was nothing on record to establish that the said parcel was ever tampered with rather the evidence led by the prosecution established that the parcel received by the said analyst remained intact---Even otherwise, dispatching of sample beyond 72 hours was not a sine qua non---Mere delay in sending the sample to the laboratory was not at all fatal to the prosecution case because Rr. 4 & 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, did not place any bar on the Investigating Officer to send the samples beyond 72 hours of seizure or recovery of the contraband---Report of Forensic Science Laboratory further provided that after conducting a chemical test with complete protocol (description thereof were available in Forensic Science Laboratory Report), the same had been found charas---Circumstances established that the prosecution had successfully proved the guilt of the accused---Appeal against conviction was dismissed accordingly.

Muhammad Sarfaraz v. The State and others 2017 SCMR 1874; Shah Muhammad v. The State 2012 SCMR 1276 and Tariq Mehmood v. The State through Deputy Attorney General, Peshawar PLD 2009 SC 39 rel.

Jadain Dashti for Appellant.

Sudheer Ahmed, D.P.G. for the State.

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 742 #

2022 Y L R 742

[Balochistan]

Before Nazeer Ahmed Langove, J

Malik MUHAMMAD AMEEN---Petitioner

Versus

Mst. SAEEDA MAQBOOL and others---Respondents

Civil Revision No. 481 of 2020, decided on 29th October, 2021.

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

----Arts. 79 & 115---Specific Relief Act (I of 1877), S. 42---Landlord---Title of landlord challenged--- Relationship---Agreement, proof of---Suit for declaration/ cancellation of mutation entries, permanent injunctions--- Concurrent dismissal---Petitioner/plaintiff contended that he had purchased suit house from predecessor of respondents/ co-sharer vide sale agreement with payment of half of the stipulated consideration while the mutation was agreed to be transferred on payment of remaining amount; that petitioner continued paying monthly rent to the predecessor; that after demise of predecessor, his brother despite knowledge of sale deed had fraudulently mutated the house in his name and consequently sold the same---Validity---Petitioner's witnesses did not prove their presence at the time of execution of agreement/payment to the predecessor of respondent---No evidence regarding payment---Suit was filed as an attempt to extend illegal stay in suit house by taking shield of fake/fabricated document having no legal value---Petitioner failed to satisfy that an agreement to sell the suit house by one co-sharer in absence of other co-sharers could validly make out case for transfer of entire un-divided property to another person---No question of the specific performance of the alleged agreement---Petitioner admitted that he was inducted as tenant by making payment of rent for many years---Petitioner could not challenge the title of the landlord without first surrendering the possession to him---Revision petition was dismissed accordingly.

(b) Constitution of Pakistan---

----Art. 199---Revisional jurisdiction---Concurrent findings of courts below---Scope---Court could not go beyond concurrent findings of the fact unless it could be shown that same were illegal; unlawful; based on the misapplication of relevant legal provisions; shocking; perverse; artificial; fanciful; so patently improbable that accepting the same could amount to perpetuating grave miscarriage of justice; or if there had been any misapplication of principle relating to appreciation of evidence; or if the finding could be demonstrated to be physically impossible.

Mujeeb Ahmed Hashmi and Sharjeel Haider for Petitioner.

Ms. Sana Suleman for Respondents Nos.1, 2, 3 and 14.

Allauddin Kakar, Assistant Advocate General for Respondent No.15.

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 798 #

2022 Y L R 798

[Balochistan]

Before Abdul Hameed Baloch, J

MAQBOOL AHMED and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No. 37 of 2021, decided on 4th February, 2021.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, common object---Bail, grant of---Rule of consistency---Scope---Accused along with others were alleged to have committed the offences falling within the mischief of Ss.302, 324, 147, 148 & 149, P.P.C.---Accused were nominated in the FIR---Four witnesses in their statements under S. 161, Cr.P.C., had implicated the co-accused with the allegation of firing upon the deceased and witnesses---Said co-accused was granted bail by the High Court---Role assigned to the accused was the same---Rule of consistency was applicable to the case of accused---Mere involvement of accused in the offence punishable with capital sentence falling within the ambit of prohibitory clause of S. 497(1), Cr.P.C. did not disentitle the accused for concession of bail---Bail application was allowed, in circumstances.

Ashfaq Ahmed alias Goga v. The State 2014 YLR 954 and Haday Khan v. State 2019 YLR 96 rel.

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

----S. 497---Bail---Benefit of doubt---Scope---Benefit of doubt can be extended to accused even at bail stage.

Muhammad Faisal's case 2020 SCMR 971 rel.

Nauroz Khan for Applicants.

Wajahat Ghaznavi, State Counsel.

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 885 #

2022 Y L R 885

[Balochistan]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

NASEEBULLAH

and others---Appellants

Versus

The STATE through Prosecutor General Balochistan and others---Respondents

Criminal Appeal No. 281 and Criminal Revision Petition No. 30 of 2019, decided on 23rd December, 2019.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Delay of one hour and fifteen minutes in lodging the FIR---Scope---Accused were charged that they made firing upon the father and brother of the complainant, due to which both were injured but brother of complainant succumbed to injuries---Record showed that the alleged occurrence had taken place at 5:15 p.m. and the FIR was lodged at 6:30 p.m.---Complainant and a witness shifted the dead body of deceased and injured to the hospital and thereafter the complainant lodged the report---Circumstances established that FIR was lodged promptly without any delay.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Ocular account supported by medical evidence---Effect---Accused persons were charged that they made firing upon the father and brother of the complainant, due to which both were injured but brother of complainant succumbed to injuries---Ocular account of the incident had been furnished by complainant, injured and a witness---Injured being eye witness narrated the whole story with regard to the occurrence---Said witness had correctly stated the date, time, the place of occurrence and the manner in which the alleged occurrence had taken place---Likewise, another eyewitness, relative of the deceased, fully corroborated the contents of the FIR as well as statement of injured witness---All the said witnesses gave consistent, natural and straightforward ocular account of the occurrence---Defence subjected them to a lengthy searching cross-examination but their testimony remained unshaken and un-shattered---Nothing was in their cross-examination to show that the accused were falsely implicated in the case---First Information Report was lodged promptly without any delay while the Investigating Officer had recorded the statements of both the witnesses soon after the occurrence---Presence of father of deceased was further established at the place of occurrence as he had also received injuries on his person---Presence of said witnesses at the place of occurrence was established---Complainant was brother and injured was father of the deceased and other witness was his relative---Said fact suggested that it was hard to believe that all the said witnesses would substitute the real culprits with the accused who had committed murder of the deceased---Substitution was a rarer phenomenon---Medical evidence produced by the prosecution also supported and corroborated the testimony of eye-witnesses and no contradiction at all could be pointed out by the defence---Circumstances established that the prosecution had succeeded in proving the charge to the extent of main accused through consistent, confidence inspiring and cogent evidence---All the witnesses remained firm in their deposition to the extent of the said accused---Record showed that neither the co-accused made firing nor recovery was effected from him---Prosecution had failed to establish through incriminatory evidence with regard to common intention or common object of the co-accused to commit the murder of deceased and causing injuries to his father---Prosecution had only established presence of co-accused along with the main accused at the relevant time, which was not sufficient to hold him responsible for the charge---Appeal against conviction was allowed to the extent of co-accused and he was acquitted of the charge---Appeal against conviction to the extent of main accused was dismissed, in circumstances.

Haroon Rasheed v. The State 2005 SCMR 1568; Sh. Muhammad Abid v. The State 2011 SCMR 1148; Nasir Iqbal v. The State 2016 SCMR 2152; Muhammad Ameer v. Muhammad Imran 2017 MLD 1263; Manthar and 3 others v. The State 2012 PCr.LJ 1263 and Hakmin Zafar and another v. The State 2017 YLR 232 rel.

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Interested and related witnesses---Scope---Accused were charged that they made firing upon the father and brother of the complainant, due to which both were injured but brother of complainant succumbed to injuries---Defence had objected that only interested witnesses were produced by the prosecution and the case of the prosecution was lacking independent corroboration---Mere relation of witnesses with the deceased was no ground to discard their testimonies, if their evidence was found independent and truthful, therefore, their testimony without looking for any other corroborative evidence, would alone be sufficient to establish the charge---Appeal against conviction was dismissed to the extent of accused, in circumstances.

(d) Criminal trial---

----Witness--- Related witnesses---Statements of related witnesses---Reliance---Scope---Evidence of related witnesses, who are not inimical and are confidence inspiring, hardly needs any corroboration.

Muhammad Akram v. The State 2015 YLR 116 rel.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Crime weapon was recovered from the possession of accused---Reliance---Scope---Accused were charged that they made firing upon the father and brother of the complainant, due to which both were injured but brother of complainant succumbed to injuries---Record showed that crime weapon i.e. 9-mm pistol was recovered from possession of the accused---Since the Investigating Officer had taken into possession the empties of 9-mm pistol from the place of occurrence, thus, the recovered 9-mm pistol along with empties were sent to the Forensic Science Laboratory for analysis---Forensic Science Laboratory after examination, through examination report, confirmed that the empties were fired from the recovered pistol---Recovery was reliable in circumstances.

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

----S. 34---Applicability of S.34, P.P.C.---Scope---Section 34, P.P.C., contemplated an act in furtherance of common intention and not the common intention simpliciter and that there was a marked distinction between similar intention and common intention and between knowledge and common intention---Mere presence of accused at the place of incident with co-accused who committed offence might not be sufficient to visit the former with the vicarious liability, but there should be some strong circumstance manifesting a common intention---Generally, common intention inter alia preceded by some or all of the elements, namely, common motive, pre-planned preparation and concert pursuant to such plan---Common intention might have developed even at the spur of the moment or during the commission of offence---Conversely, common intention might have undergone change during the commission of offence.

Gulzar Khan Kakar and Kaleemullah Kakar for Appellants (in Criminal Appeal No.281 of 2019).

Bangul Khan Mari for the Complainant (in Criminal Appeal No.281 of 2019).

Habibullah Gul, Additional Prosecutor General ("APG") for the State (in Criminal Appeal No.281 of 2019).

Bangul Khan Mari for Petitioner (in Criminal Revision Petition No.30 of 2019).

Gulzar Khan Kakar and Kaleemullah Kakar for Respondents (in Criminal Revision Petition No.30 of 2019).

Habibullah Gul, Additional Prosecutor General ("APG) for the State (in Criminal Revision Petition No.30 of 2019).

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 910 #

2022 Y L R 910

[Balochistan]

Before Abdul Hameed Baloch, J

MUHAMMAD ASHRAF KASI and 3 others---Petitioners

Versus

MUHAMMAD YAHYA KASI and others---Respondents

Civil Revision No. 430 of 2020, decided on 12th July, 2021.

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

----O. XXXIX, Rr. 1 & 2---Transfer of Property Act (IV of 1882), S. 52---Interim injunction---Transfer of property pending suit relating thereto---Scope---Plaintiffs assailed the dismissal of their application under O. XXXIX, Rr. 1 & 2, C.P.C. by the Appellate Court---Validity--Plaintiffs had not sought any relief which deprived the defendant from the property, they had only prayed for maintenance of status quo in respect of the suit properties till disposal of the suit---Object of granting interim injunction was to ensure that the suit property would not be alienated in case of decree being passed in favour of the plaintiff and execution thereof did not become difficult---Principle of lis pendens was no ground to refuse the temporary injunction---Revision petition was accepted and the defendant was directed not to create third party interest in the suit properties till disposal of the main suit.

Mst. Nazir Begum v. Muhammad Tahir 2005 CLC 925 rel.

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

----O. XXXIX, Rr. 1 & 2---Interim injunction---Scope---Party to the suit has to establish a "prima facie" case, "balance of convenience" and "irreparable loss" for temporary injunction---Three ingredients must co-exist in favour of a party.

Gul Hassan Tareen and Arif Bazai for Petitioners.

Akram Shah and Muhammad Ayub Tareen, Assistant Advocate General for Respondent No.1.

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 941 #

2022 Y L R 941

[Balochistan]

Before Abdullah Baloch, J

Master FAZALULLAH and another---Appellants

Versus

MUMMY and others---Respondents

Civil Revision No. 220 of 2010 and Civil Miscellaneous Application No. 1195 of 2021, decided on 30th August, 2021.

Limitation Act (IX of 1908)---

----S. 5---Maxim "vigilantibus non dorminentibus jura subveniunt" (law helps vigilant not the indolent)---Applicability---Restoration of revision petition---Petitioners' application for restoration was dismissed for non-prosecution on 14.11.2017---Petitioners' contended that non-appearance was not deliberate/intentional; and that they were not intimated by their counsel about such dismissal---Held, that petitioners and their counsel remained absent on various dates of hearing continuously without any prior information/intimation; and they kept silent for a long lasting period of more than 3 years without any justifiable reason/sufficient cause---Present application for restoration did not contain any application for condonation of delay which showed the conduct and irresponsibility of petitioners--- Revision petition was dismissed in limine.

Ghulam Qadir and others v. Sh. Abdul Wadood and others PLD 2016 SC 712 rel.

Syed Manzoor Ahmed Shah for Appellants.

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 953 #

2022 Y L R 953

[Balochistan]

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

AKBAR HARIFAL and another---Petitioners

Versus

ZAHID NOOR and 3 others---Respondents

Constitution Petition No. 377 of 2015, decided on 27th July, 2020.

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

----Ss. 22-A & 22-B---Powers of Ex-officio Justice of Peace---Registration of FIR---Element of mala fide---Scope---Petitioners assailed order passed by Ex-officio Justice of Peace whereby criminal case was ordered to be registered against them---Order for registration of FIR against the petitioners was passed without affording them an opportunity of hearing---Respondent was arrested in FIR on the complaint of one of the petitioners---Petitioner had alleged that a passenger van and official vehicle of the petitioners collided and there was no damage to any vehicle, the passenger van also went away and vehicle of the petitioners also proceeded, meanwhile the respondent forcibly stopped the official vehicle, resisted and damaged the shirt of the levies official but on the other hand respondent claimed that the petitioners and other levies officials took him to a place where he was tortured and wrongfully confined for ten hours---No medical certificate about injuries to the respondent was available on record---Prompt FIR was lodged against him and he was arrested on the same day, therefore, no question of wrongful confinement arose---Respondent had filed the application under S. 22-A, Cr.P.C. in order to harass and humiliate the public servants---Element of mala fide was apparent from the conduct of respondent---Constitutional petition was allowed and the impugned order was set aside, in circumstances.

2020 YLR 44 and Sughra Bibi v. State PLD 2018 SC 595 rel.

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

----Ss. 22-A & 22-B---Powers of Ex-officio Justice of Peace---Registration of FIR---Scope---Ex officio Justice of Peace, in exercise of powers under S.22-A, Cr.P.C., is not supposed to proceed and act mechanically by simply considering the version of events narrated by a party applying for registration of an FIR, but instead, in order to safeguard against misuse or abuse of such process, the Ex-officio Justice of Peace has to apply his judicial mind and has to satisfy himself that prima facie some material is available on record to support such version.

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

---Ss. 22-A, 22-B & 154---Powers of Ex-officio Justice of Peace---Information in cognizable cases---Scope---Word 'shall' has been used in S.154, Cr.P.C., while the word 'may' has been used in S. 22-A(6), Cr.P.C., which manifests the intention of legislature that Ex-officio Justice of Peace is still left with discretion to pass an order for registration of FIR.

Amanullah Kanrani for Petitioners.

Syed Muhammad Zahid for Respondent No. 1.

Abdul Karim Malghani, State Counsel.

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 1123 #

2022 Y L R 1123

[Balochistan]

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

JAN MUHAMMAD---Petitioner

Versus

HUMAIRA ALLAH DITA and another---Respondents

Constitution Petition No. 1032 of 2019, decided on 2nd July, 2020.

Family Courts Act (XXXV of 1964)---

----S. 17 & Preamble---Object of Family Courts Act, 1964---Provisions of Qanun-e-Shahadat, 1984 and Code of Civil Procedure, 1908 not to apply---Scope---Petitioner assailed the dismissal of his application under Art. 59 of the Qanun-e-Shahadat, 1984, read with S.151, C.P.C. for examination of a document through expert---Validity---Family Courts Act, 1964, was promulgated for the expeditious settlement and disposal of disputes relating to the marriages and other family affairs and special procedure was provided to achieve such object---Purpose of enacting Family Courts Act, 1964, was to frustrate the technicalities for the purpose of justice between the parties in the shortest possible time---Provisions of Civil Procedure Code, 1908 as well as Qanun-e-Shahadat, 1984, were not applicable in stricto sensu to the proceedings before the Family Court by virtue of S.17 of the Family Courts Act, 1964---Trial Court after going through the relevant law had rightly dismissed the application---Constitutional petition was dismissed.

Farzana Rasool v. Dr. Muhammad Bashir 2011 SCMR 1361 rel.

Khurshid Ahmed Khosa for Petitioner.

Syed Saleem Akhtar for Respondent No.1.

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 1222 #

2022 Y L R 1222

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Razi Khan Barrech, JJ

NAJEEBULLAH and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.143 of 2020, decided on 31st December, 2020.

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

----S. 9(c)---Possession of Narcotics---Appreciation of evidence---Prosecution case was that five kilograms hashish and a cash of Rs.535,000/- were recovered from the vehicle of the accused persons---Record showed that all the witnesses were consistent on all material aspects---No distinct discrepancy was noticed to spoil the credibility of the testimony of the witnesses---Said witnesses were subjected to cross-examination by the defence, but their testimony was not shattered---From the evidence, the mode and manner of arrest of accused leading to the recovery of narcotic had been proved---Prosecution evidence inspired confidence, while recovery of the narcotic from the vehicle which was driven by the accused was also proved by the prosecution---Accused was found responsible for transporting of huge quantity of the narcotic having a prior knowledge of the narcotic substance in his vehicle---In rebuttal to overwhelming prosecution evidence, the accused had failed to produce any tangible, trust-worthy and confidence inspiring evidence of the prosecution witnesses---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--- Possession of narcotics---Appreciation of evidence---Transporting of narcotic---Liability of driver---Scope---Person who is on driving seat of the vehicle shall be held responsible for transportation of narcotics.

Kashif Amir v. State PLD 2010 SC 1052 rel.

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotics---Appreciation of evidence---Search and arrest, mode of ---Search to be made in presence of witnesses---Non-association of private witnesses---Effect---Five kilograms hashish and a cash of Rs.535,000/- were recovered from the vehicle of the accused persons---Contention of the accused was that no private person was joined in recovery proceedings except Police Officials, which was a violation of S. 103, Cr.P.C.---Such contention of accused had no force as the application of S.103, Cr.P.C. had been excluded by S.25 of the Act---Reluctance of the general public to become a witness in such like cases was a judicially recognized fact and there was no option left but to consider the statement of official witness as no legal bar had been imposed in that regard---In the present case, no proof of enmity with the complainant and the prosecution witnesses had been brought on record, thus, in the absence thereof, the competence of prosecution witnesses being officials was rightly believed---Witnesses were not at all questioned about any previous ill-will or enmity with the accused whereby they could have been falsely nabbed and charged for the possession of five kilogram hashish---Circumstances established that the prosecution had proved its case against the accused---Appeal against conviction was dismissed accordingly.

Zafar v. The State 2008 SCMR 1254 rel.

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

----S. 9(c)--- Control of Narcotic Substances (Government Analysts) Rules, 2001, R.6---Possession of narcotics---Appreciation of evidence---Delay of about three days in sending samples of recovered material to the Forensic Science Laboratory---Chain of safe custody---Prosecution case was that five kilograms hashish and a cash of Rs.535,000/- were recovered from the vehicle of the accused persons---Record showed that samples were sent to the office of the Chemical Examiner within seventy two hours of the recovery---Even otherwise, dispatching of sample beyond 72 hours was not a sine qua non---Mere delay in sending the sample to the laboratory was not at all fatal to the prosecution case because Rr. 4 & 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001,did not place any bar on the Investigating Officer to send the samples beyond 72 hours of seizure or recovery of the contraband---Said provisions in that respect were directory and not mandatory---Nothing was on record to establish that the sample parcel was ever tempered with rather the evidence led by the prosecution established that when the parcel was received by the said agency, remained intact---Circumstances established that the prosecution had proved its case against the accused---Appeal against conviction was dismissed accordingly.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that five kilograms hashish and a cash of Rs.535,000/- were recovered from the vehicle of the accused persons---Record showed that the prosecution had failed to prove any link of the co-accused persons with that of the accused---No recovery, whatsoever, was affected from the co-accused persons and the contraband was recovered from the trunk (dikki) of the vehicle---Prosecution had failed to establish that the co-accused were in knowledge of the narcotic or that the same was exposed to them---Co-accused were passengers and having no link either with the accused or the vehicle which was used in the crime---If the contraband was lying open within the view of the co-accused persons or they knew the placement of the same in the secret cavities, then the situation would have been different---Prosecution had simply proved presence of the co-accused persons in the vehicle---Mere presence of the co-accused persons in the vehicle would not involve them in the case---Circumstances established that the prosecution had failed to prove its case against the co-accused persons---Appeal against conviction to the extent of co-accused was allowed, in circumstances.

Qaisarullah v. State 2009 SCMR 579 rel. 3.

Jameel Ahmed Babai and Amanullah Batezai for Appellants.

Miss Noor Jahan Kahoor, A.P.G. for the State.

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 1276 #

2022 Y L R 1276

[Balochistan]

Before Naeem Akhtar Afghan and Zaheer ud Din Kakar, JJ

SHER ZAMAN---Petitioner

Versus

Syed ABDUL SADIQ and 2 others---Respondents

C.P. No.464 of 2020, decided on 23rd June, 2021.

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

----O. XXIII, R. 2(a)---Withdrawal of suit with permission to file afresh---Terms 'formal defect' and 'other sufficient cause'---Trial Court accepted petitioner's/plaintiff's application for amending the plaint---District Court set aside the order of trial Court on ground that the proposed amendment would change the nature of the suit---Validity---Contents of original plaint revealed that relevant facts pertaining to iqrarnama had not been pleaded and defect and ambiguity found in description of the suit property and cause of action---District Court rightly dismissed petitioner's application under O. VI, R. 7, C.P.C. as amendments had changed the nature and complexion of the suit and cause of action---Suit was at initial stage and evidence had not been led---Cause of action was subsisting for the subject property, so petitioner could not be held remediless and non-suited on technicalities---Order XXIII prevented technicalities from defeating justice---Sufficient grounds existed for allowing petitioner to file the suit afresh by properly pleading the relevant facts, with correct description of property and its correct accrual of cause of action---C.M.A. was accepted and Constitutional petition was disposed of accordingly.

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

----O. VI, R. 17---Amendment changing nature and complexion of the suit was not permissible under O. VI, R. 17 of C.P.C.

----O. XXIII, R. 2 & O. VI, R. 17---Formal defect---Scope---Misjoinder of cause of action/failure to disclose proper cause of action, insufficient description of the suit property and defective frame of the suit were held formal defects to attract provisions of R. 2(a), O. XXIII, C.P.C.---Such defects could not be remedied by allowing amendment under O. VI, R. 17.

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

----O. XXIII, R. 2(a)---Term 'other sufficient cause' was wider than the term 'formal defects'---Incorrect averments made in plaint and plaint having not been properly drafted by a lawyer as held as sufficient grounds for allowing the plaintiff to withdraw the suit with permission to file the same afresh.

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

----S. 151---Mere non-mentioning of correct provision of law was not fata to the application if power to pass such an order was available with the Court.

Behlol Khan Kasi for Petitioner.

Jamil Ahmed Khan Babai for Respondent No.1.

Zahoor Ahmed Baloch, Assistant Advocate General for Respondent No.3.

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 1319 #

2022 Y L R 1319

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

SANAULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 249 of 2021, decided on 11th August, 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 forty five minutes in lodging the FIR---Scope---Accused were charged for committing murder of the deceased by firing---Occurrence in the case had taken place at 6:15 pm in the month of January---First Information Report was lodged after about 2 hours and 45 minutes of the incident, thus, a possibility regarding deliberation before lodging of FIR could not safely be ruled out of consideration---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)---

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of the deceased by firing---Eye-witnesses produced by the prosecution were closely related to deceased---Presence of witnesses being injured at the place of occurrence could not be possibly doubted, however, whether they shared with the court the whole truth was another issue---All the prosecution witnesses had been arrayed as accused in cross FIR lodged by one of the acquitted co-accused in respect of the same incident---Witnesses had not uttered a single word regarding the injuries sustained by the opposite party while suppressing the facts---Statements of the alleged injured witnesses under S. 161, Cr.P.C., after a delay of about 18 days of the incident---Statement of one eye-witness was recorded on the day of incident and he had not assigned the role of firing to the accused---Statements of eye-witnesses had been disbelieved by the Trial Court qua the seven acquitted co-accused---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.

----Witness---Injured witness--- Scope---Not necessary that the injured witness had spoken the whole truth and he could not be relied upon unless corroborated.

(d) Criminal trial---

----Witness---Disbelieved eye-witnesses---Once the prosecution witnesses were disbelieved with respect to a co-accused then they could not be relied upon with regard to the other co-accused unless they were corroborated by independent evidence.

Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11 rel.

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

----Ss. 302(b) & 34--- Qatl-i-amd, common intention--- Appreciation of evidence---Benefit of doubt---Medical evidence and ocular account---Contradictions---Accused were charged for committing murder of the deceased by firing---Medical evidence had given a big lie to the ocular account furnished by the eyewitnesses inasmuch as per Death Certificate---Besides the gunshot on the back side of the head near ear, 5 more pellets injuries had been found on the left hand of deceased which had not been explained by the eye-witnesses---According to the prosecution witnesses, accused, after placing his gun (Kalashnikov) on the temple of deceased made firing---Neither any exit wound nor any blackening was observed by the Medical Officer at the time of 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.

(f) Criminal trial---

----Benefit of doubt--- Principle---Prosecution is bound to prove its case against the accused beyond shadow of any doubt---If any reasonable doubt arises 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.

Muhammad Najam-ud-Din Mengal, Muhammad Wasey Tareen and Bairam Khan Tareen for Appellant.

Muhammad Naeem Kakar, Additional Prosecutor General for the State.

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 1353 #

2022 Y L R 1353

[Balochistan (Sibi Bench)]

Before Nazeer Ahmed Langove and Rozi Khan Barrech, JJ

MEHRAB-UD-DIN---Appellant

Versus

MOULA BAKHSH and 8 others---Respondents

Criminal Acquittal Appeal No.(s) 64 of 2019, decided on 10th February, 2021.

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

----Ss. 302, 147, 148 & 149---Criminal Procedure Code (V of 1898), S. 417 ---Appeal against acquittal---Qatl-i-amd, rioting, armed with deadly weapon, common object---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Delayed FIR---Delayed postmortem examination---Un-natural conduct of witnesses---Appellant assailed the acquittal of accused persons by the Trial Court---First Information Report was lodged with a delay of 2 hours---Eye-witnesses had not justified their presence at the place of occurrence at the relevant time---Presence of eye-witnesses on the spot was unnatural, had they been present at the spot they would have received some injuries---Mode and manner of the occurrence advanced by the prosecution witnesses was not appealable to a prudent mind---Postmortem examination was conducted after an unexplained delay of 15 hours which pointed towards a real possibility that the time was consumed by the local police and the complainant party in order to produce and plant the eye-witnesses after cooking up a false story---Trial Court had considered all the material present on record properly and had arrived at the conclusion which was based on proper appreciation of the facts and law thus, did not need interference---Appeal against acquittal was dismissed, in circumstances.

Muhammad Ilyas v. Muhammad Abib alias Billa and others 2017 SCMR 54 and Nazeer Ahmed v. Gehne Khan and others 2011 SCMR 1473 rel.

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

----Ss. 302, 147, 148 & 149---Qatl-i-amd, rioting, armed with deadly weapon, common object---Appreciation of evidence---Appeal against acquittal---Recovery of weapon---Scope---No bullet empties of 9mm pistol were taken into possession from the place of occurrence---No report of Forensic Laboratory was tendered in evidence by the prosecution so as to ascertain that the weapon recovered from the accused was the same by which the deceased was done to death---Recovery of weapon was held to be inconsequential, in circumstances.

----S. 154---Registration of FIR---Prompt FIR---Purpose---Main object of prompt registration of FIR is to rule out the possibility of deliberation, consultation and inquiry---Element of delay in lodging the crime report is treated with caution because there is a tendency to involve innocent people during the interval.

(d) Criminal trial---

----Duty of prosecution--- Scope---Prosecution is bound to prove its case against the accused beyond any shadow of reasonable doubt.

(e) Criminal trial---

----Benefit of doubt---Scope---Multiple doubts in the prosecution case are not required to record the judgment of acquittal but a single reasonable doubt is sufficient to extend benefit of the same to the accused.

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

----S. 417---Appeal against acquittal---Reversal---Scope---Acquittal is reversed only when the judgment is found to be blatantly perverse, resting upon fringes of impossibility and results in miscarriage of justice.

Inayatullah Khan (absent) for Appellant.

None present for Respondents Nos.1 to 8.

Abdul Mateen, Deputy Prosecutor General ("D.P.G.") for Respondent No.9.

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 1439 #

2022 Y L R 1439

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Abdullah Baloch, JJ

SAMIULLAH and 4 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 20, Criminal Revision No. 13 and Criminal Acquittal Appeal No. 126 of 2020, decided on 26th November, 2020.

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

----Ss. 302, 337-A(i), 337-F(i), 147, 149 & 34---Qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-mudihah, rioting, unlawful assembly, common intention---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Prosecution case was that the accused party while armed with daggers assaulted on complainant party, due to which the father of the complainant died due to dagger injury on his liver while his other relatives were injured---Statements of witnesses were contradictory to each other---Each witness had narrated the mode and manner of the occurrence in different narration--- Complainant deliberately mentioned his father's name wrongly, besides, it had also been established through evidence that the FIR was lodged after deliberation and consultation---Circumstances established that the prosecution had failed to prove the charge against all the accused---Appeal against conviction was allowed, in circumstances.

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

----S. 161---Delay in recording the statements of witnesses---Effect---Credibility of a witness is looked with serious suspicion if his statement under S.161, Cr.P.C. is recorded with delay without offering any plausible explanation.

Muhammad Khan v. Maula Bakhsh 1998 SCMR 570 rel.

----Ss. 302, 337-A(i), 337-F(i), 147, 149 & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-mudihah, rioting, unlawful assembly, common intention---Appreciation of evidence---Benefit of doubt---Withholding best evidence---Scope---Prosecution case was that the accused party while armed with daggers assaulted on complainant party and father of the complainant died due to dagger injury on his liver while his other relatives were injured---All the witnesses were brothers, nephews and cousins to each other---Record showed that the occurrence was witnessed by number of shopkeepers present at the place of occurrence, but none of them was interrogated and produced as witness in the court---One witness was also allegedly injured in the incident, but he was not produced in the Trial Court---Non-production of said witness would lead to a presumption that had he been produced, he might have told the truth which would not have been favourable to the prosecution, thus, the case of prosecution lacked independent corroboration and the accused persons could not be assumed to be culprit solely on the statements of witnesses who were interested and related to the deceased---Circumstances established that the prosecution had failed to prove the charge against all the accused---Appeal against conviction was allowed, in circumstances.

(d) Criminal trial---

----Witness--- Interested and related witnesses--- Reliance--- Scope--- Mere relationship of witnesses inter-se or to the deceased was not sufficient to discredit their testimony out-rightly if witnesses were found to be the witnesses of truth.

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

----Ss. 302, 337-A(i), 337-F(i), 147, 149 & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)--- Qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-mudihah, rioting, unlawful assembly, common intention---Appreciation of evidence---Benefit of doubt--- Medical evidence--- Scope---Prosecution case was that the accused party while armed with daggers assaulted on complainant party, due to which the father of the complainant died due to dagger injury to his liver while his other relatives were injured---Record showed that despite separating the heart of deceased, it was not sent to Forensic Science Laboratory in order to establish the cause of death of deceased, which created doubt in the case of prosecution and despite exhumation of dead body the actual cause of death of deceased was not ascertained, while the other pieces of body sent to Forensic Science Laboratory established the fact that no poison/ damages was found on the said pieces of body---Circumstances established that the prosecution had failed to prove the charge against all the accused---Appeal against conviction was allowed, in circumstances.

(f) Criminal trial---

----Medical evidence---Scope---Medical evidence was only a source of corroboration in respect of nature and seat of injury, the kind of weapon used, the duration between the injury and death---Medical evidence could confirm the ocular account to a limited extent but could not establish the identity of the accused or connect him with the commission of offence.

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

----Ss. 302, 337-A(i), 337-F(i), 147, 149 & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-mudihah, rioting, unlawful assembly, common intention---Appreciation of evidence---Benefit of doubt---Non recovery of weapon of offence---Scope---Prosecution case was that the accused party while armed with daggers assaulted on complainant party, due to which the father of the complainant died due to dagger injury on his liver while his other relatives were injured---Record showed that the accused persons attacked upon the complainant party with sticks, daggers, bricks and hand clip, but the Investigating Agency had neither taken into possession the bricks from the place of occurrence nor got effected the recoveries of sticks, daggers and hand clip, which was another dent to the case of prosecution---Circumstances established that the prosecution had failed to prove the charge against all the accused---Appeal against conviction was allowed, in circumstances.

Rehmatullah Barech, Shams-ud-Din Achakzai and Ms. Humaira Munir for Appellants.

Muhammad Younas Mengal, Additional Prosecutor General for the State.

Abdul Zahir Kakar and Noor Muhammad Kakar for the Complainant.

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 1497 #

2022 Y L R 1497

[Balochistan]

Before Abdul Hameed Baloch, J

GHULAM RASOOL---Petitioner

Versus

ARSALLAN ILLYAS and others---Respondents

Civil Revision No.393 of 2018, decided on 19th April, 2021.

Islamic law---

----Pre-emption suit---Plaintiff assailed the concurrent dismissal of his suit for pre-emption---Validity---Plaintiff should have mentioned the date and time of performance of Talb-e-Muwathibat in the plaint and proved that he had performed Talb-e-Muwathibat in the same meeting---Neither requirement of Talb-e-Muwathibat was completed nor Talb-e-Ishhad was proved---Concurrent findings of the courts below were based on valid reasons---No non-reading or misreading of evidence was involved in the case warranting interference by High Court---Impugned judgment and decrees were upheld---Revision petition was dismissed.

Mst. Kharia Bibi v. Mst. Zakia Begum 2007 SCMR 515 and Nasrullah v. Muhammad Rasool 2014 CLC 1323 rel.

Khalid Ahmed Kubdani for Petitioner.

Ilahi Bakhsh and Nisar Ahmed for Respondents.

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 1620 #

2022 Y L R 1620

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar and Abdul Hameed Baloch, JJ

MUHAMMAD ILYAS---Appellant

Versus

ISHFAQ alias MUNSHI and 3 others---Respondents

Criminal Acquittal Appeals Nos.(s) 111 of 2014 and 23 of 2018, decided on 18th November, 2021.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Ocular and medical evidence---Contradictions---Scope---Accused were charged for committing murder of the brother of complainant by firing---Motive alleged for the incident was a matrimonial dispute between the parties---Record showed that the statements of the ocular witnesses were not in line with each other rather contradicted on material point--- Such material contradictions, improvements, omission and discrepancies could not be overlooked--- Medical evidence contradicted ocular account---Ocular witnesses stated that 2 or 3 bullets hit the deceased, while the Medico-Legal Certificate disclosed that only one bullet hit the deceased---Circumstances established that there was no solid or concrete evidence against the accused connecting them with the commission of offence---Trial Court after proper appreciation of evidence had rightly acquitted the accused of the charge---Appeal was dismissed accordingly.

Muhammad Imran v. The State 2020 SCMR 857 rel.

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

----Ss. 302 & 34---Qanun-e-Shahadat (10 of 1984), Art. 129---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Withholding material evidence---Effect---Accused were charged for committing murder of the brother of complainant by firing---Ocular account was furnished by the brother and mother of the deceased---Said witnesses stated that besides them another person was with them, but his statement was not recorded---Alleged ocular witnesses stated that there was enmity with accused/respondents--- Statements of interested witnesses required independent corroboration, in circumstances---Said person was an independent witness and was not produced by the prosecution for the reason best known to them---Prosecution, though, was not bound to produce each witness mentioned in the calendar of witnesses, however, if a material witness was withheld then under the provisions of Art. 129(g) of Qanun-e-Shahadat, 1984, presumption could be taken against the prosecution that if such witness was produced he would have not supported the prosecution case---Circumstances established that there was no solid or concrete evidence against the accused connecting them with the commission of offence---Trial Court after proper appreciation of evidence had rightly acquitted the accused of the charge---Appeal was dismissed accordingly.

Muhammad Salah v. The State 2018 YLR 283 rel.

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Accused were charged for committing murder of the brother of complainant by firing---In the present case, the ocular witnesses stated that the accused/respondents fired upon the deceased, but could not harm the witnesses---Question was as to why the accused/respondents spared the witnesses and only targeted the deceased though witnesses were not armed---Witnesses stated that firing was made from 2/3 feet---In such situations, it did not appeal to logic that killing a person in presence of brother and mother the accused would not attempt to cause any injury/killed the prosecution witnesses leaving them for evidence to be hanged---Circumstances established that there was no solid or concrete evidence against the accused connecting them with the commission of offence---Trial Court after proper appreciation of evidence had rightly acquitted the accused of the charge---Appeal was dismissed accordingly.

Muhammad Farooq v. The State 2006 SCMR 1707 and Dholu v. The State 2002 PCr.LJ 690 rel.

(d) Criminal trial---

----Motive---Scope---Once a motive was set up, it was imperative for the prosecution to prove the same---On failure whereof adverse inference could be drawn against the prosecution.

Muhammad Khan v. Zakir Hussain PLD 1995 SC 590 and Hakim Ali v .The State 1971 SCMR 432 rel.

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

----Art. 40---Recovery on the disclosure of accused--- Scope--- Recovery on pointation of accused is admissible in evidence.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Weapon of offence recovered on the pointation of accused---Reliance---Scope---Accused were charged for committing murder of the brother of complainant by firing---Allegedly, on the disclosure of accused, the crime weapon SMG was recovered from his house lying in iron box---Prosecution had failed to prove the recovery of SMG independently---Prosecution had not recorded statement of any person from the locality whether the house belonged to accused---Witness had stated that the key of iron box was produced by an old lady, whilethe Investigating Officer stated that the key was handed over by a child---Even otherwise, it could not be believable that after committing murder one could keep SMG in iron box of his house---Recovery of the crime weapon, in circumstances, could only be a piece of supporting evidence---Circumstances established that there was no solid or concrete evidence against the accused connecting them with the commission of offence---Trial Court after proper appreciation of evidence had rightly acquitted the accused of the charge---Appeal was dismissed accordingly.

Hayatullah v. The State 2018 SCMR 2092 rel.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Delay of about more than one month in sending the crime empties and blood stained earth for analysis---Scope--- Accused were charged for committing murder of the brother of complainant by firing---Crime empties and blood stained earth was received by expert for examination after more than one month---Prosecution had not explained as to where the said articles were kept in the police station---Prosecution had not recorded the statement of any official in order to prove whether the case property was in safe custody or not---Such delay destroyed the evidentiary value of positive report of expert---Circumstances established that there was no solid or concrete evidence against the accused connecting them with the commission of offence---Trial Court after proper appreciation of evidence had rightly acquitted the accused of the charge---Appeal was dismissed accordingly.

Ali Sher v. The State 2008 SCMR 707 rel.

(h) Criminal trial---

----Medical evidence---Scope---Medical evidence was an expert opinion which had always been treated to be confirmatory in nature---Medical evidence might confirm ocular account with regard to set of injuries, nature of injuries,kind of weapon used in the commission of offence,but it could not connect the accused with the crime.

Faryad Ali v. The State 2008 SCMR 1086 rel.

(i) Criminal trial---

----Benefit of doubt---Principle---If there was one circumstance creating reasonable doubt in the mind of a prudent person, same would be sufficient for acquittal of accused, not as a matter of grace or concession but as a matter of right.

Haji Muhammad Naeem v Muhammad Younas 2017 PCr.LJ 1113 rel.

Hasnain Iqbal Minhas for Appellant.

Ahsan Rafiq Rana, Jamil Akhtar Gajani Additional Prosecutor General assisted by Abdul Mateen, Deputy Prosecutor General and Abdul Nabi, S.H.O. Police Station Malik Muhammad Shaheed District Sohbatpur for Respondent No. 2.

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 1938 #

2022 Y L R 1938

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar and Abdul Hameed Baloch, JJ

ABDUL MAJEED alias JAWA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.(s) 61 of 2020, decided on 26th November, 2020.

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

----Ss. 302(b), 324, 337-A(ii) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-mudihah, common intention---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Prosecution case was that the accused assaulted on the complainant party, due to which brother of complainant died while his nephew and cousin received bullet and butt injuries---Ocular account of the incident had been furnished by complainant and injured witnesses---Record showed that the statements of the witnesses were contradictory---Eye-witnesses narrated that they went to hospital from the place of occurrence in a private vehicle, however, Police Constable/witness and Investigating Officer stated that they met the complainant first time at the spot, whereas Medical Officer stated that the deceased and injured were brought by Police Constable/witness---Complainant stated that he took the dead body from hospital to his house---While Police Constable/witness and Investigating Officerstated that the complainant was accompanied with them from hospital to the spot,prepared visual site plan on his pointation---Such contradictions and discrepancies created doubt in the prosecution case---If the statement of witness was found doubtful no conviction could be based on such statement unless there was independent corroboration of the same---Circumstances established that the prosecution had failed to prove its case beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Imran v. The State 2020 SCMR 857 rel.

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

----Ss. 302(b), 324, 337-A(ii) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-mudihah, common intention--- Appreciation of evidence---Benefit of doubt---Vicarious liability---Scope---Prosecution case was that the accused assaulted on the complainant party, due to which brother of complainant died while his nephew and cousin received bullet and butt injuries---Accused was charged for sharing common intention with the absconding accused in the commission of the offence---Witnesses had not assigned accused any overt act---No evidence with regard to participation of accused in crime was available on the record---Section 34, P.P.C. was neither punitive nor did enact a rule of evidence, but related to joint liability---Mere presence on spot ipso facto was not sufficient to hold a person vicariously liable---Prosecution must prove that the offence was committed in pre-arranged plan---Circumstances established that the prosecution had failed to prove its case beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Yaqoob Sub-Inspector v. The State PLD 2001 SC 378 rel.

----Absconsion---Scope---Absconsion of accused could not establish his guilt---If the prosecution failed to bring home guilt of an accused through confidence inspiring, trustworthy and reliable evidence, it could not take benefit of absconsion.

Shafqat Abbas v. The State 2007 SCMR 162 rel.

(d) Criminal trial---

----Medical evidence---Scope---Medical evidence could confirm unnatural death of deceased, however, the medical evidence was only used for confirmation of ocular evidence, in regard of seat of injuries, weapon of offence used---Medical evidence itself did not constitute any corroboration qua the identity of accused.

Muhammad Sharif v. The State 1997 SCMR 866 rel.

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

----Ss. 302(b), 324, 337-A(ii) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-mudihah, common intention---Appreciation of evidence---Benefit of doubt---Recovery of motorcycle from the accused---Reliance---Scope---Prosecution case was that the accused assaulted on the complainant party, due to which brother of complainant died while his nephew and cousin received bullet and butt injuries---Record showed that no recovery was effected from the accused---Prosecution had alleged that the motorcycle used in commission of crime by accused had taken into possession, but there was no evidence how the prosecution presumed that the motorcycle was the same which was used in commission of the offence---No evidence either documentary or oral was available to prove that the motorcycle belonged to the accused---Circumstances established that the prosecution had failed to prove its case beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324, 337-A(ii) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-mudihah, common intention---Appreciation of evidence---Benefit of doubt---Delay of about sixty days in sending the blood-stained clothes and blood-stained earth for analysis---Effect---Prosecution case was that the accused assaulted on the complainant party, due to which brother of complainant died while his nephew and cousin received bullet and butt injuries---In the present case, the blood stained clothes and blood stained earth received at Forensic Science Laboratory with the delay of more than 60 days without any plausible explanation that where the said material was kept and in whose custody---Positive report in such circumstances could not benefit the prosecution---No evidence was available whether the blood group of blood stained clothes of deceased/injured were the same or not---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. The State 2017 SCMR 486 rel.

(g) Criminal trial---

----Benefit of doubt---Principle---Conviction must be based on unimpeachable and reliable evidence---Any doubt arising in the prosecution case must be resolved in favour of the accused.

Safdar Baloch alias Ali v. The State 2019 SCMR 1412 rel.

Abdul Basit Shah for Appellant.

Jamil Akhtar Gajani, Additional Prosecutor General for the State.

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 1992 #

2022 Y L R 1992

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ

MUHAMMAD HUSSAIN and another---Appellants

Versus

MUHAMMAD BASHIR and another---Respondents

Criminal Acquittal Appeal No.210 of 2018, decided on 8th March, 2021.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Accused were charged for committing murder of the brother of the complainant by firing---Motive of the incident was the fight between deceased and accused, which took place about a year back---Parties were in inimical terms and cases were pending between them---Record showed that no specific role was attributed to the accused/respondent---Convict/co-accused was attributed the role of firing upon the deceased and the crime weapon was recovered from the said co-accused, which was matched with the bullet empties, which were recovered from the place of occurrence---Eye-witness of the occurrence was not produced before the court to the extent of accused---None of the reasons cited by the trial judge had been found as artificial or unrealistic---Even otherwise, on independent analysis, the genesis of the prosecution case did not appear to be free from doubt---Circumstances established that the Trial Court had considered all the material present on record properly and arrived at the conclusion which was based on proper appreciation of the facts and law, thus did not need interference---Appeal against acquittal was dismissed accordingly.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Motive was not proved---Scope---Accused were charged for committing murder of the brother of the complainant by firing---Motive of the incident was the fight between deceased and accused, which took place about a year back---Parties were in inimical terms and cases were pending between them---Record showed that the complainant alleged the motive against the convict/accused and did not allege any motive towards the accused/ respondent---Neither the witnesses attributed the role of the firing to the accused/respondent nor stated a single word that either the accused/ respondent was armed with any deadly weapon---No motive, consultation and conspiracies of the accused had been attributed by the complainant as well as other prosecution witnesses---Circumstances established that the Trial Court had considered all the material present on record properly and arrived at the conclusion which was based on proper appreciation of the facts and law, thus did not need interference---Appeal against acquittal was dismissed accordingly.

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Recovery of weapon of offence---Scope---Accused were charged for committing murder of the brother of the complainant by firing---Record showed that recovery of crime empties and matching of the same with the crime weapon which was recovered on the pointation of the accused/convict---Accused/respondent was not responsible for the murder of deceased---Neither accused/respondent had made firing upon the deceased nor any recovery whatsoever had been effected from his possession---Prosecution had failed to establish through incriminatory evidence with regard to common intention or common object of the accused/respondent to commit the murder of the deceased---Circumstances established that the Trial Court had considered all the material present on record properly and arrived at the conclusion which was based on proper appreciation of the facts and law, thus did not need interference---Appeal against acquittal was dismissed accordingly.

Muhammad Ameer v. Muhammad Imran 2017 MLD 1263; Manthar and 3 others v. The State 2012 PCr.LJ 1263 and Hakmin Zafar and another v. The State 2017 YLR 232 rel.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Ocular account---Scope---Accused were charged for committing murder of the brother of the complainant by firing---Ocular account of the alleged incident which was furnished by witness, was the only eye-witness, while the convict/co-accused was arrested, and his statement was recorded by the Trial Court---Convict/co-accused was convicted by the Trial Court, which was upheld by High Court as well as Supreme Court---Accused/ respondent was arrested on 15.08.2017---Supplementary challan was submitted before the Trial Court---Trial Court called the witnesses and during trial a witness appeared before the court and recorded his statement and produced the death certificate of eye-witness who died unnatural deaths---Said witness who appeared in the trial to the extent of convict/co-accused was the person who was the only eye-witness---In whose statement the conviction was awarded to the convict/co-accused, but during the fresh trial to the extent of accused/ respondent he was reported to have died unnatural death and was no more in the mortal world---Trial Court, on receiving the death report from witness, did not consider the statement of eye-witness to the extent of accused/respondent, which was recorded on the previous round of case---Statement of eye-witness was recorded once under S.512, Cr.P.C., and again when the convict/co-accused was arrested---In the present case, the prime evidence had not been produced before the court in the shape of eye-witness and no opportunity of cross-examination was awarded to the accused/respondent when the eye-witness had appeared to the extent of convict/co-accused---In such circumstances, the previously recorded statement of the eye-witness under S.512, Cr.P.C., and to the extent of convict/co-accused, was in the absence of the accused/respondent and the said witness was not cross-examined by the accused/ respondent and the same could not be issued against the accused/respondent---Circumstances established that the Trial Court had considered all the material present on record properly and arrived at the conclusion which was based on proper appreciation of the facts and law, thus did not need interference---Appeal against acquittal was dismissed accordingly.

Muhammad Saddique v. The State 2018 SCMR 71 rel.

(e) Appeal against acquittal---

----Double presumption of innocence---Interference---Scope---Acquittal carried with its double presumption of innocence---Acquittal order could be reversed only when found blatantly perverse, resting upon fringes of impossibility and resulting into miscarriage of justice---Acquittal order could not be set aside merely on the possibility of a contra view.

Kamran Murtaza and Adjan Ejaz for Appellants.

Naseebullah Kasi for Respondent No.1.

Muhammad Younus Mengal, Assistant Prosecutor General ("APG") for the State.

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 2015 #

2022 Y L R 2015

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

ZAKIA BEGUM and another---Appellants

Versus

NASIR-UL-ISLAM KHAN and others---Respondents

R.F.A. No.41 of 2014 and Contempt Application No.62 of 2018, decided on 30th June, 2021.

(a) Islamic law---

----Inheritance--- Will--- Appellants/ plaintiffs claimed to be owners in properties left by their parents and had assailed Will Deed and agreement relied upon by respondents/defendants who had already transferred some property to some other buyers---Suit filed by appellants/plaintiffs was dismissed by Trial Court---Validity---Properties in question initially belonged to predecessor-in-interest of parties and subsequently by means of Will were transferred in the names of respondents/ defendants in revenue record---Subsequent buyers after getting their satisfaction from revenue record bonafidely purchased the same---Subsequent buyers paid sale amount to respondents/defendants and revenue record was transferred to their names in accordance with law who had been enjoying their peaceful possession and business over property in their possession---High Court maintained findings of Trial Court to the extent of such transfer to subsequent buyers who were bona fide purchasers, whereas appellants/plaintiffs were entitled to receive their proportionate shares from sale amount as on the date of sale transaction---Bequest to an heir under Islamic Law was not valid unless other heirs consented to the same after the death of testator---Any single heir could consent as to bind his own share---High Court declared that appellants/plaintiffs were co-sharers of properties left by their deceased parents to the extent of their shares except the properties sold out to subsequent buyers but they were entitled to receive their shares from sale consideration amount as it was on sale date---High Court declared that Will Deed and agreement were null and void and directed to cancel revenue record entries, transactions and business carried out in pursuance to two documents---High Court set aside judgment and decree passed by Trial Court---Appeal was allowed accordingly.

Muhammad Iqbal and 5 others v. Allah Bachaya and 18 others 2005 SCMR 1447; Sahib Jan and others v. Mst. Aysha Bibi through L.Rs. and others 2013 SCMR 1540; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Abdul Haq and another v. Mst. Surrya Beguma and others 2002 SCMR 1330 and Mst. Raj Bibi and others v. Province of Punjab through District Collector, Okara and 5 others 2001 SCMR 1591 ref.

(b) Islamic law---

----Inheritance--- Applicability--- For inheritance rights of legal heirs of a deceased person in Pakistan the Quran and Sunnah is supreme law.

----Will---Scope---Will has no legal value with regard to legal heirs.

Book of Hadees i.e. Ain-ul-Hidaya Jadeed, Volume-VIII, page No.571 and Book of Sunan-e-Ibn-e-Maja Shareef page No.468 Hadees No.2712 rel.

Attorney of Appellants is present in person.

Khushnood Ahmed for Respondents Nos. 2 and 1-A.

Habibullah Khan Nasar for Respondent Nos. 1-B, 1-C, 1-E, 1-G and 1-H.

Nadir Ali Chalgari for Respondent No.1-D.

Qasim Khan for Respondents Nos. 9 to 14.

Gul Hassan Tareen and Muhammad Arif Bazai for Respondent No.15.

Mian Badar Munir for Respondents Nos. 1 to 3 (in Contempt Application No.62 of 2018).

Habibullah Gul, Additional .P.G., Shahid Baloch and Shai Haq Baloch, Additional Advocates General for the State.

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 2070 #

2022 Y L R 2070

[Balochistan (Sibi Bench)]

Before Muhammad Ejaz Swati and Rozi Khan Barrech, JJ

Hafiz OBAIDULLAH---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.(s) 3 and Murder Reference No.(s) 1 of 2020, decided on 14th June, 2021.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Delay of one hour in lodging FIR---Scope---Accused was charged for committing murder of the brother of the complainant---Record depicted that the matter was reported on the same night at 12:30 am within one hour of the occurrence---Parties were known to each other before the occurrence and there was no chance for false implication---Such circumstances were enough to believe that the FIR was registered without pre-consultation or premeditation---Circumstances established that the prosecution had proved its case beyond any shadow of doubt, however, the death penalty was altered into imprisonment for life, in circumstances---Appeal was dismissed with said modification in sentence.

(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---Scope---Accused was charged for committing murder of the brother of the complainant---Evidence of complainant revealed that when he reached the place of occurrence, he found his brother in an injured condition, who disclosed that accused had fired at him---Said witness was cross-examined, but nothing came on record to discard his evidence---No serious efforts were made to challenge his statement on the question of dying declaration---From the evidence, it had been established beyond any shadow of a doubt that deceased made a dying declaration immediately after the incident, eliminating the possibility of influence etc. before making the accused responsible for causing him injuries---Prosecution had proved the dying declaration, which by itself was sufficient to maintain conviction and sentence---Circumstances established that the prosecution had proved its case beyond any shadow of doubt, however, the death penalty was altered into imprisonment for life, in circumstances---Appeal was dismissed with said modification in sentence.

----Art. 46---Dying declaration---Scope---Dying declaration, even made before a private person, is free from influence and the person before whom such dying declaration is made is examined, then it becomes a substantive piece of evidence, and, no corroboration is required and such declaration can be made the basis of conviction.

Farmanullah v. Qadeem Khan 2001 SCMR 1474 rel.

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

----S. 164---Confession---Requirement---For accepting a confession, two essential requirements must be fulfilled, i.e. the confession was made voluntarily, it was based on true account of facts, leading to the crime and the same was proved at the trial.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Appreciation of evidence---Confessional statement, recording of---Accused was charged for committing murder of the brother of the complainant---Record showed that the accused was arrested on 26.12.2019 and was produced before the Judicial Magistrate for taking remand on 27.12.2019---After remaining in police custody for fourteen days, accused recorded his confessional statement---No evidence was available on record to remotely show that the accused was subjected to any torture, inducement or promise---Judicial Magistrate, who had recorded the confessional statement of the accused, deposed that after fulfilling all legal formalities within the meaning of section 364, Cr.P.C., he recorded the confessional statement of the accused---Sufficient time was given to the accused to think over his confession---Replies of the accused to the questions left no room for any doubt that his confessional statement was involuntary or the result of torture, force, inducement or promise---Judicial Magistrate had been subjected to lengthy and taxing cross-examination by the defence, but nothing could be extracted from his mouth to prove that the confessional statement of the accused was the result of force, torture, promise or inducement---Judicial Magistrate while recording the confessional statement of the accused had taken all the precautions and had faithfully complied with all the formalities as envisaged under S.364, Cr.P.C.---Chain of circumstances brought on record by the prosecution fully corroborated the confessional statement of the accused---Accused remained unable to give a plausible explanation for his false involvement by the complainant and the witnesses---Prosecution had proved its case beyond any shadow of doubt, however, the death penalty was altered into imprisonment for life, in circumstances---Appeal was dismissed with said modification in sentence.

Dadullah and another v. The State 2015 SCMR 856; Wazir Khan v. The State 1989 SCMR 446; Muhammad Amin v. The State PLD 2006 SC 219 and Ahmad Hassan and another v. The State 2001 SCMR 505 rel.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Appreciation of evidence---Delay of fourteen days in recording confessional statement---Scope---Accused was charged for committing murder of the brother of the complainant---Confessional statement of the accused had been recorded with a delay of fourteen days---Admittedly the accused was arrested and his statement under S.164, Cr.P.C. had been recorded on 10.01.2020---Judicial Magistrate, who recorded the statement of the accused was found to be having no motive/malice for implicating the accused in the crime---Investigating Officer was not alleged to have induced, pressurized or tortured the accused so as to obtain the confessional statement---Statement of Investigating Officer as well as cross-examination did not reflect any motive on his part for fabricating false evidence to involve the accused in the crime---Since the rule of admissibility of a confession prescribed no time for recording the confession, if recorded within the period of legal, physical remand with police---Confession of an accused and its different aspects in each case were to be looked into in the light of its attending facts and circumstances---Delay would essentially damage the evidentiary value of confession was not a rule of universal application---No doubt that there was a delay of fourteen days in recording the confessional statement of the accused, but that by itself was not sufficient to discard the same---Circumstances established that the prosecution had proved its case beyond any shadow of doubt, however, the death penalty was altered into imprisonment for life, in circumstances---Appeal was dismissed with said modification in sentence.

PLD 1978 Quetta 1; 1985 PCr.LJ 2375; 2005 YLR 908; 2013 PCr.LJ 127; 2004 YLR 1088; 2006 PCr.LJ 62; 2021 MLD 729; Nabi Bakhsh v. State 1999 SCMR 1972; Muhammad Ismail and another v. The State 1995 SCMR 1615; Majeed v. The State 2010 SCMR 55 and Muhammad Yaqoob v. State 1992 SCMR 1983 rel.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Appreciation of evidence---Confession, retraction of---Accused was charged for committing murder of the brother of the complainant---Undoubtedly, the accused had retracted his confession, same could be relied upon because the events disclosed by him for the purpose of the commission of a crime in his confessional statement, including the manner adopted by him, were fully corroborated by prosecution evidence available on record---Accused had also disclosed the motive of killing the deceased which indicated that his confessions was voluntary and true and the same could not be discarded for the sole reason of having been recorded after fourteen days in view of the facts and circumstances of the case---Prosecution had proved its case beyond any shadow of doubt, however, the death penalty was altered into imprisonment for life, in circumstances---Appeal was dismissed with said modification in sentence.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon and crime empties---Scope---Accused was charged for committing murder of the brother of the complainant---Crime weapon was recovered on the pointation of accused and the pistol along with empties secured from the place of occurrence were sent for the report of the Ballistic Expert---Ballistic Expert Report had been produced, which showed that the crime empties were fired from the pistol recovered on pointation of the accused in pursuance of the disclosure made by him---Circumstances established that the prosecution had proved its case beyond any shadow of doubt, however, the death penalty was altered into imprisonment for life, in circumstances---Appeal was dismissed with said modification in sentence.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Quantum of sentence---Scope---Accused was charged for committing murder of the brother of the complainant---Record showed that although all the other formalities vis-a-vis recording the statement of the accused under S.164, Cr.P.C., had been duly complied with, yet same was recorded after a delay of fourteen days---Said fact was an irregularity, not vitiating the confessional statement itself, but putting the court to caution---Accused made one fire upon the deceased and had not repeated the same---Alteration of the death penalty into imprisonment for life would be a conscionable wage in the circumstances---Consequently, the penalty of death awarded to accused was altered into imprisonment for life---Appeal was dismissed with said modification in sentence.

Muhammad Nasir Mari for Appellant.

Ghulam Muhiuddin Sasoli for the Complainant.

Jameel Akhtar Gajani, A.P.G. for the State.

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 2110 #

2022 Y L R 2110

[Balochistan]

Before Rozi Khan Barrech, J

TORAB KHAN---Appellant

Versus

TAHIR KHAN---Respondent

F.A.O. No. 51 of 2021, decided on 31st March, 2022.

Balochistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13(6)---Non-deposit of tentative monthly rent on fixed day -Striking off defence---Respondent/land lord filed eviction application against appellant/ tenant before Trial Court---Trial Court directed appellant to deposit tentative monthly rent---Appellant failed to deposit rent for some months on the day fixed by trial court---Respondent submitted an application to strike off the defence of appellant---Trial Court struck off the defence of appellant and directed appellant to vacate the shop and deliver its possession to respondents---Held, that Trial Court in the presence of both the parties passed the order for payment of monthly rent, by which appellant was directed to deposit the monthly rent at the rate of Rs. 10000/- per month before 5th day of each month---Record further transpired that the order under S.13(6) of Balochistan Urban Rent Restriction Ordinance, 1959 was not complied with, as such, Trial Court vide order struck off the defense of appellant/tenant and directed him to vacate the rented premises and hand over the vacant possession to respondent/applicant---Appellant placed on record receipts regarding deposit of rent which contained the details of rent deposited by him, which showed that in the month of April 2021, he deposited the rent amount of Rs.8000/ on 12th April instead of Rs.10000/-and deposited an amount of Rs.20000/- for the months of May and June 2021 on 15th June 2021,meaning thereby that appellant did not deposit the monthly rent of May 2021 within time---Further appellant deposited the rent amount of July 2021 on 15th July 2021, and for the month of August 2021, appellant deposited the rent on 26th August, 2021 and lastly for the month of September 2021, the amount of rent was deposited on 15th September, 2021---Appellant was not complying with the order passed by Trial Court---Plain, unambiguous and clear wording of S.13(6) Balochistan Urban Rent Restriction Ordinance, 1959 was open only to one interpretation that whenever the tenant was directed to pay the monthly rent before the 15th day of each month, the tenant must comply with the directions---Penal clause of S.13(6) of Balochistan Urban Rent Restriction Ordinance, 1959 had also been provided by the Legislature that in case of default ,not only his defence should be struck off, but possession of the rented premises should be ordered to be taken from him---Provisions of S.13(6) of Balochistan Urban Rent Restriction Ordinance, 1959, ibid were mandatory in nature ---Once the Rent Controller directed the appellant to deposit tentative rent before the 15th of every month, then it was mandatory upon the appellant to deposit the said rent as per the direction of Rent Controller--Appellant had brought himself within the mischief of subsection (6) of S.13 of Balochistan Urban Rent Restriction Ordinance, 1959---Appeal was dismissed.

Khawaja Muhammad Mughees's case 2001 SCMR 2020 rel.

Syed Manzoor Shah for Appellant.

Iqbal Ahmed Kasi for Respondent No. 1.

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 2154 #

2022 Y L R 2154

[Balochistan]

Before Abdullah Baloch, J

ATTA MUHAMMAD and another---Petitioners

Versus

SARFARAZ

and 6 others---Respondents

Civil Revision No. 218 of 2018, decided on 23rd September, 2021.

Limitation Act (IX of 1908)---

----S. 5---Delay, condonation of---Appeal filed after withdrawal of execution petition---Law favours vigilant not indolent---Suit for declaration and permanent injunction with averments that petitioners/plaintiffs were lawful owners of Shamilat land; that said land was still un-partitioned amongst co-sharers (except one of plots); that petitioners were land owners since their forefathers; that property under consideration of Highway Authorities for construction/passing road through, belonged to seven tribes; that petitioners were entitled to get amount of compensation according to their respective shares---Suit was partly allowed by Trial Court---Petitioner's appeal against judgement/decree of Trial Court as well as application accompanied thereto for condonation of delay were dismissed by appellate Court---Validity---Petitioners first filed execution application before executing Curt which was withdrawn due to fact that decree so passed could not serve the purpose as full relief sought by petitioners was not decreed in their favour---After withdrawal of execution application they preferred appeal along with application for condonation of delay---Petitioner had failed to explain the delay of each and every day with sufficient cause---Revision petition was dismissed accordingly.

Naik Muhammad v. Muhammad Shabbir and others 2019 CLC 64 rel.

Anwar Khan for Petitioners.

Ajmal Lawon for Respondents.

Malik Azeem, Assistant A.G. for the State.

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 2195 #

2022 Y L R 2195

[Balochistan]

Before Abdul Hameed Baloch, J

KARIM BAKHSH and others---Petitioners

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Board of Revenue

and 3 others---Respondents

Civil Revision No. 55 of 2016, decided on 7th December, 2020.

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

----O. XXIII, Rr. 1 & 2---Withdrawal of suit---Permission to file afresh---'Formal defect'---Placement of revenue record---Concurrent findings against the Petitioner/plaintiff--- Petitioner filed revision petition and application seeking withdrawal of suit with permission to file a fresh suit on the basis of a certain letter/document which had already been on record (in relevant departments) but the petitioner had neither agitated before the trial or appellate courts and filed the application after five years of filing revision petition---Such could not be treated as 'formal defect'---Evidence produced by petitioners/plaintiffs was inconsistent/contradictory to each other---Parties were bound to show good cause for non-production of such document at relevant stage---Party remained silent for years of litigation and after dismissal of their suit and appeal and application---No evidence was produced to show as to whether suit land was cultivable by Karez, or when permission was obtained for Karez---Concurrent judgments were upheld and Revision was dismissed.

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

----O. XXIII, R. 1---Provision of R. 1 of O. XXIII of C.P.C., 1908 was not meant to allow the parties to fill the lacunas subsequently.

Rustam v. Sikandar Khan 2016 YLR 1936 ref.

----O. XXIII, R. 1---'Formal defect'---Any defect in the pleading that did not permit to proceed further in the suit or any absence of a particular formality the suit would ultimately fail.

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

----S. 115--- Revisional jurisdiction---Scope---Object of revision was to rectify the error committed by the courts below in exercise of jurisdiction---Concurrent findings recorded by subordinate courts could not be called in question unless shown that their judgments were contrary to law, mis-appreciation of evidence and committed gross illegality---Mere possibilities of different view of evidence could not be a ground for setting aside the concurrent findings.

Abdul Mateen v. Mst. Mustakhia 2006 SCMR 50 rel.

(e) Balochistan Land Revenue Act (XVII of 1967)---

----S.52---Mutation entries---Presumption of truth---Mutation entries could not create title/ownership right----Record of right/periodical record carried weight, was to be presumed to be true until the contrary was proved---Party challenging the entries in the said record had to prove that the entries were false or not according to law.

Muhammad Nazeef v. Mst. Mumtaz Begum 2002 CLC 1517 rel.

Najam-ud-Din Mengal for Petitioners.

Ahmed Ali, Additional Advocate General for Respondents.

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 2215 #

2022 Y L R 2215

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ

SAIF UD DIN---Petitioner

Versus

MUHI UD DIN and another---Respondents

Constitutional Petition No. 1222 of 2021 and Contempt Application No. 58 of 2021 in Constitutional Petition No. 1222 of 2021, decided on 30th September, 2021.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 154, 155 & 200---Non-cognizable offence---Ex-officio Justice of Peace--- Jurisdiction--- Petitioner was aggrieved of direction issued by Ex-officio Justice of Peace for registration of FIR against him in case where no cognizable offence was made out---Validity---Ex-officio Justice of Peace was empowered under S.22-A(1-6), Cr.P.C. to issue necessary directions for registration of FIR, if after perusal of available record contents of application prima facie could establish commission of cognizable offence---In case of non-cognizable offence, two remedies were available first before Station House Officer concerned, to whom application was sent by Ex-officio Justice of Peace, to register complaint in Daily Roznamcha Report and was to proceed according to provisions of S.155, Cr.P.C. for seeking permission from Judicial Magistrate for investigation and thereafter to submit complaint before Court---Remedy of private complaint under S.200, Cr.P.C. before Court was also available to complainant---High Court set aside order passed by Ex-officio Justice of Peace and FIR registered against petitioner was quashed---Constitutional petition was dismissed in circumstances.

Ghulam Wali Achakzai for Petitioner.

Zahoor Ahmed Baloch, Additional Advocate General, Younas Mengal Additional Prosecutor General along with Muhammad Azhar Akram, DIG Quetta, Hameedullah Dasti, SP (Legal), Hassan Abbas Malik, PDSP Quetta, Nadeem Khan SI/ASHO Police Station Khaliq Shaheed, Waqar Malik, Ex-Head Mohrar Police Station Khaliq Shaheed Quetta for Respondents..

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 2392 #

2022 Y L R 2392

[Balochistan]

Before Nazeer Ahmed Langove and Sardar Ahmed Haleemi, JJ

MUHAMMAD SADIQ---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 82 of 2022, decided on 29th July, 2022.

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

----S. 497--- Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51---Transportation of narcotics---Bail, refusal of---Huge quantity of narcotics---Scope---Accused along with another was apprehended while transporting 28 kg and 921 grams of Ice/Sheesha---No allegation of enmity or false implication was levelled against the police nor anything was available on the record---Recovery of the vehicle (from which the contraband was recovered) was not disputed nor any other person had come forward to claim its ownership---Huge quantity of narcotic substance was recovered and the offence was non-bailable, which not only fell within the prohibited clause of S. 497, Cr.P.C. but also attracted the bar contained in S.51 of the Control of Narcotic Substances Act, 1997---Bail could not be encouraged when the proceedings before the Trial Court were at final stage, as the same could prejudice the case of either party---Bail application was rejected, in circumstances.

Ehsan Ullah Khan v. The State 2020 YLR 50; Ahsan Bangash v. The State 2017 PCr.LJ 511; Muhammad Saleh Mallah v. The State 2016 PCr.LJ 432; Hakim Ali v. The State 2001 PCr.LJ 1865 and Ghulam Muhammad v. The State 1997 PCr.LJ 805 distinguished.

Imtiaz Ahmed v. The State PLD 1997 SC 545 rel.

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

----S. 497---Bail---Scope---Bail cannot be encouraged when the proceedings before the Trial Court are at final stage, as the same can prejudice the case of either party. [p. 2395] D

Syed Saleem Akhtar and Ms. Talat Rehman for Applicant.

Yahya Baloch, Additional Prosecutor General ("APG") for the State.

YLR 2022 QUETTA HIGH COURT BALOCHISTAN 2413 #

2022 Y L R 2413

[Balochistan]

Before Rozi Khan Barrech and Muhammad Aamir Nawaz Rana, JJ

GHULAM QADIR---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 80 of 2022, decided on 28th July, 2022.

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---Failure to prepare parcel on the spot---Effect---Accused was alleged to have been found in possession of 1130 grams of charas---No parcel was prepared at the spot---First Information Report was also silent about the fact whether any sample was obtained from the allegedly recovered narcotics---Such omission on the part of complainant had created doubt about the prosecution story, benefit whereof was available to the accused even at bail stage---Accused had made out a case of further inquiry under S. 497(2), Cr.P.C.---Accused was admitted to post-arrest bail.

Ihtisham Ali Cheema v. The State 2022 SCMR 624 rel.

Talat Waheed for Applicant.

Abdul Kareem Malghani, State Counsel.

Supreme Court Azad Kashmir

YLR 2022 SUPREME COURT AZAD KASHMIR 444 #

2022 Y L R 444

[Supreme Court (AJ&K)]

Before Raja Saeed Akram Khan, C.J. and Kh. Muhammad Naseem, J

MUHAMMAD AFZAL KHAN and another---Appellants

Versus

JUDGE FAMILY COURT, MUZAFFARABAD and 2 others---Respondents

Civil Appeal No. 590 of 2019, decided on 11th August, 2021.

(On appeal from the order of the High Court, dated 30.9.2019, in Writ Petition No. 946 of 2019).

Azad Jammu and Kashmir Family Courts Act, 1993 (XI of 1994)---

----S. 5, Sched.---Suit for maintenance---Scope---Question before Supreme Court was as to from which date the minor was entitled to receive the maintenance allowance---Suit for recovery of maintenance allowance was dismissed by the Family Court for want of proof, however, in appeal the Shariat Appellate Bench of the High Court had modified the judgment and decree passed by the Family Court and had declared that the minor was entitled to recovery of Rs.5,000/- per month as maintenance allowance---Shariat Appellate Bench of the High Court, in its judgment, had not specifically mentioned any date due to which the dispute as to payment of past maintenance allowance arose---When there was no mention of any specific date, keeping in view the overall facts and circumstances of the case, the Courts below were justified in holding that the minor son was entitled for recovery of maintenance allowance with effect from the date of institution of the suit---Appeal was dismissed.

Akhlaq Hussain Mughal, Advocate for Appellants.

Muzaffar Hussain Mughal, Advocate for Respondents Nos. 2-3.

YLR 2022 SUPREME COURT AZAD KASHMIR 638 #

2022 Y L R 638

[Supreme Court (AJ&K)]

Before Kh. Muhammad Nasim and Raza Ali Khan, JJ

FARHAN FAROOQ---Appellant

Versus

SALMA MEHMOOD---Respondent

Civil Appeal No.499 of 2019 and Civil Miscellaneous No. 98 of 2019, decided on 11th August, 2021.

(On appeal from the judgment and decree of the Shariat Appellate Bench of the High Court dated 3.10.2018 in Family Appeals Nos. 15, 16, 17 and 18 of 2017).

(a) Azad Jammu and Kashmir Family Courts Act, 1993 (XI of 1994)---

----S. 5, Sched.---Suit for dissolution of marriage--- Cruel attitude--- Scope---Respondent filed three suits; first, for dissolution of marriage; the second, for recovery of dower; and the third, for recovery of maintenance allowance---Appellant also filed a counter suit for restitution of conjugal rights---Suits filed by respondent were allowed whereas that of appellant was dismissed---Validity---Statements of the parties clearly showed that the stance of appellant that the respondent had wilfully left the house of her husband had no substance---Cruelty was not confined to physical torture---Even the cruel attitude was not confined only to the extent of physical violence, it included mental torture, hateful attitude of husband or other inmates of the house and also included other circumstances, in presence of which, the wife was forced to abandon the house of her husband---Appellant could not succeed in pointing out any misreading or non-reading of evidence---Appeal was dismissed.

Syed Shabir Shah Gillani v. Imtiaz Ahmed Abbasi and 5 others 2014 SCR 418 ref.

Muhammad Muneer and another v. Naveeda Khalid 2019 SCR 394 and Mst. Amreen v. Muhammad Kabir 2015 YLR 170 rel.

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

----Art. 42--- Appeal--- Concurrent findings---Scope---Findings of facts concurrently recorded by the Courts below cannot be disturbed until and unless a case of non-reading or misreading of evidence is made out or gross illegality is shown to have been committed.

Kamal Hussain v. M. Shabir and others 2017 SCR 236 rel.

Raja Shujahat Ali Khan, Advocate for Appellant.

Sardar Abdul Sammie Khan, Advocate for Respondent.

YLR 2022 SUPREME COURT AZAD KASHMIR 698 #

2022 Y L R 698

[Supreme Court (AJ&K)]

Before Raja Saeed Akram Khan, C.J., Kh. Muhammad Naseen and Raza Ali Khan, JJ

GOVERNMENT OF PAKISTAN through Secretary, Kashmir Affairs and Gilgit-Baltistan---Petitioner

Versus

YASIR BASHIR and 12 others---Respondents

Civil Review No. 40 of 2020, decided on 3rd August, 2021.

(In the matter of review of judgment of this Court dated 10.01.2019 in Civil Appeals Nos. 299 and 330 of 2018).

Civil Procedure Code (V of 1908)---

----S. 114---Review---Aggrieved person---Scope---Review petition can only be filed by an aggrieved person---Aggrieved person is one whose rights are threatened or being denied or whose rights have been affected by a decision.

Azad Government and others v. Barrister Adana Nawaz Khan and others 2020 SCR 591 rel.

Shahd Ali Awan, Advocate for Petitioner.

Fayyaz Ahmed Janjua, Advocate for Respondent No.1.

YLR 2022 SUPREME COURT AZAD KASHMIR 868 #

2022 Y L R 868

[Supreme Court (AJ&K)]

Before Raja Saeed Akram Khan, C.J. and Raza Ali Khan, J

BARKAT ALI---Appellant

Versus

ADDITIONAL DISTRICT JUDGE, DADYAL and 4 others---Respondents

Civil Appeal No. 11 of 2020, decided on 23rd June, 2021.

(On appeal from the order of the High Court dated 1.10.2019 in Writ Petition No. 355 of 2018).

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

----Arts.132 & 133---Cross-examination---Cross-examination of co-defendant---Adverse party---Right of cross-examination--- Scope--- Question before Supreme Court was whether a co-defendant could cross-examine the defendant---Held; no special provision exists in the Qanun-e-Shahadat, 1984, for cross-examination of the co-defendant/co-accused's witnesses, relevant provisions of law are Arts. 132 & 133, which refer to examination-in-chief and cross-examination of witness by the adverse parties---Article 132(2) of Qanun-e-Shahadat, 1984, postulates that examination of a witness by the adverse party is cross-examination---Article 133(1) of Qanun-e-Shahadat, 1984, refers to cross-examination if the adverse party so desires after the witness is first examined in chief---Said two provisions of Qanun-e-Shahadat, 1984, make it clear that a party has a right of cross-examination if it feels adversely affected---As a general rule, evidence is not legally admissible against a party who at the time evidence was given, had no opportunity to cross-examine the witness who recorded such evidence---No evidence should be read against one who was not given opportunity of testing it by cross-examination---Such would be unjust, unfair and unsafe not to allow a co-defendant to cross-examine a witness called by the other co-defendant whose case was adverse to him, thus later have a right to cross-examine those witnesses---If there is no conflict of interest, then such an opportunity needs not to be given---Condition precedent for giving an opportunity to a co-defendant to cross-examine the other co-defendant is that there should exist conflict of interest between them either from the pleadings or during the course of evidence---Once it is demonstrated that their interests are not common or there is a conflict of interest and evidence has been adduced affecting the interest of co-defendant then the Court cannot rely on that evidence without giving the opportunity of cross-examination to the party affected by it---Person against whom the evidence is given should have opportunity to cross-examine the witness, so that ultimately, truth may emerge, on the basis of which the Court can decide the matter.

Sadhu Singh v. Sant Narain Singh Sewadar and others AIR 1978 Punjab and Haryana 319 rel.

(b) Words and phrases---

----"Adverse party"---Meaning---Party whose interest are opposed to the interests of another party to the action.

Black's Law Dictionary rel.

Sardar Muhammad Azam Khan, Advocate for Appellant.

Ch. Muhammad Ashraf Ayaz, Advocate for Respondents Nos. 4 and 5.

YLR 2022 SUPREME COURT AZAD KASHMIR 1391 #

2022 Y L R 1391

[Supreme Court (AJ&K)]

Before Kh. Muhammad Naseem and Raza Ali Khan, JJ

FARRAH AYYUB---Petitioner

Versus

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

(On Appeal from the judgment of the High Court dated 06-1-2020 in Criminal Appeal No.54 of 2019).

Criminal Appeals Nos.15 and 16 of 2020, decided on 11th November, 2021.

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

----Ss. 9(c) & 15---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4---Transportation of narcotics---Aiding, abetment or association in narcotics---Dispatch of sample for test or analysis---Appreciation of evidence---Benefit of doubt---Safe custody---Non-production of sample-bearer---Contra-dictory statements--- Scope--- Accused persons were alleged to have been apprehended while transporting 03 kilograms of charas---Safe custody of the recovered substance at the local police station was not established by the prosecution during trial---Even safe transmission of the samples of recovered substance from local police station to the office to Chemical Examiner was not established--- Sample-bearer was not produced before the Trial Court---Alleged contraband was sent to Forensic Laboratory after a delay of eight days whereas according to R. 4 of Control of Narcotic Substances (Government Analysts) Rules, 2001 the sealed parcel had to be deposited within seventy-two hours after seizure---Sample was taken from only one of the three bundles and not from each bundle separately---Discrepant statements of prosecution witnesses regarding weight and colour of sample had cast serious doubt on the credibility of the prosecution case---Impugned judgments of both the courts below were set aside and the accused persons were acquitted of the charges levelled against them---Appeals were allowed, in circumstances.

Kamran Shah and others v. State and others 2019 SCMR 1217; Mst. Razia Sultana v. The State and others 2019 SCMR 1300; Zahir Shah v. The State 2019 SCMR 2004; Mst. Sakina Ramzan v. The State 2021 SCMR 451; State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039; Zeenat Ali v. The State 2021 PCr.LJ 1294 and Noor Aga v. State of Punjab 2008 16 SCC 417 rel.

(b) Criminal trial---

----Benefit of doubt---Scope---If the Court is of the opinion that on evidence two views are reasonably possible, one that the accused is guilty and the other that he is innocent, then the benefit of doubt goes in favour of the accused.

Sudheer Shah alias Kaka Shah v. The State and another 2016 SCR 1653; Muhammad Rafique v. Aurangzeb and others 2015 SCR 974; State through Advocate-General v. Talib Hussain and others 2013 SCR 192; Wazir Muhammad v. The State 1992 SCMR 1134 and Fazal Dayan v. The State, and others Criminal Appeal No. 975-P of 2019, decided on 23.02.2021 rel.

Fazal Mehmood Baig for Appellant (in both Appeals).

Sajid Malik, Assistant Advocate-General for Respondents (in both Appeals).

YLR 2022 SUPREME COURT AZAD KASHMIR 2201 #

2022 Y L R 2201

[Supreme Court (AJ&K)]

Before Kh. Muhammad Nasim and Raza Ali Khan, JJ

WAHEEDA BASHIR KIYANI---Appellant

Versus

MUHAMMAD MUNSIF KHAN---Respondent

Civil Appeal No. 100 of 2020, decided on 10th August, 2021.

(On appeal from the judgment of the Shariat Appellate Bench of the High Court dated 28.11.2019 in Family Appeal No.189 of 2019).

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

----S. 25---Custody of minor---Scope---Appellant/mother assailed order passed by courts below whereby her application for custody of minors was dismissed and a guardianship certificate was issued in favour of the respondent/father---Validity---Serious allegations were levelled against the appellant in different FIRs, which were sub judice before the courts below---Such toxic state of affairs lead to an un-peaceful and unhealthy atmosphere which adversely affected the well-being of minors---Court was bound to make sure that the environment in which the minor was to be brought up was suitable for his health, religious and moral well-being and did not in any way harm his mental and physical health or his religious and moral values---Spouses had segregated and the appellant had married to another person---Minors were school going grown-up boys living with their father since long and they could be better looked after by their father rather than appellant---Trial Court after due appreciation had issued the guardianship certificate in favour of the respondent which was rightly upheld by the High Court---Appeal was dismissed.

Shafiqurehman v. Mst. Fazilat Begum 1995 SCR 136; M. Rasheed and another v. M. Bashir and another 2009 SCR 237; Nasrullah v. Shamim Akhtar and others 2010 PCr.LJ 1623; M. Ismael and another v. State and another 2008 SCR 584; Munir Hussain Shah and others v. Qasim Hussain Shah and others 1999 CLC 828 and Adalat Khan v. Fazal Hussain and another 1995 SCR 151 ref.

M. Ramzan v. Mst. Rukhsana Bi 1996 SCR 265; Shabana Naz v. Muhammad Saleem 2014 SCMR 343; Sultana Begum v. Mir Afzal and others PLD 1988 Kar. 252; Mst. Hamida Begum and others v. Ubedullah and others 1989 CLC 604 and D.F. Mulla's Principles of Muhammadan Law para. 352 rel.

M. Ramzan v. Mst. Rukhsana Bi 1996 SCR 265 distinguished.

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

----S. 17---Matters to be considered by the Court in appointing guardian---Scope---Utmost priority of the Court in determining the custody of a minor is the welfare and well-being of the minor---Such is the reason, law provides a parental jurisdiction to the Guardian Judge in such cases---Objective of the law is not just handing over the custody of the minor, but to examine all the aspects which come with it---Power and duty of the Court while considering the question of custody of a minor is to thoroughly and comprehensively take into consideration the minor's welfare---Word "welfare" in such cases is to be taken in its widest sense, which includes not only the monetary expenses of the minor but also his mental and physical health, educational needs, psychological well-being, religious and moral values---Courts are duty bound to consider such cases in the best interest and healthy up-bringing of the minor which sometimes may yield the rights of the parents---No doubt, according to certain Muslim Jurists, custody of a minor son till the age of seven years may remain with the mother and in the case of minor daughter till she attains the age of puberty and thereafter, normally their custody should be restored to the father, however, it is an established principle of law that the paramount consideration in all such situations would be the betterment of the minor and even a mother may be deprived of the custody of a minor if circumstances of the case allow.

----S. 17---Matters to be considered by the Court in appointing guardian---Scope---Court has to consider the character and capacity of the proposed guardian.

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

----S. 17---Matters to be considered by the Court in appointing guardian---Scope---Courts will prefer the betterment of minor over that of parent's right in guardianship cases---Such principle allows the Guardian Courts to determine the custody of the minor on the basis of his interest which can lie with either of the parents.

Mrs. Rahat Farooq Raja, Advocate for Appellant.

Raja Jalil Umar Khan, Advocate for Respondent.

YLR 2022 SUPREME COURT AZAD KASHMIR 2332 #

2022 Y L R 2332

[Supreme Court (AJ&K)]

Before Raza Ali Khan and Muhammad Younas Tahir, JJ

COMMISSIONER RELIEF AND REHABILITATION AZAD JAMMU AND KASHMIR and 2 others---Appellants

Versus

Syed MASOOD HAMDANI and 79 others---Respondents

Civil Appeal No. 445 of 2020, decided on 11th February, 2022.

(On appeal from the judgment of the High Court, dated 19.09.2019 in Civil Appeal No. 170 of 2017).

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

----O. IX, R. 6---Procedure when only plaintiff appears--- Summons duly served---Summons not duly served---Summons served, but not in due time---Scope---Order IX, R. 6 of C.P.C. contemplates three situations (i) when summons was duly served; (ii) when summons was not duly served and (iii) when summons served, but not in due time---In the first situation, when it is proved that the summons was duly served, the Court may make an order that the suit be heard ex parte---Said provision casts an obligation on the Court and simultaneously invokes a call to the conscience of the Court to feel satisfied in the sense of being 'proved' that the summons was duly served and then alone Court is conferred with a discretion to make an order that the suit be heard ex parte---Basic purpose and objective of summons is to inform defendant of proceedings so that he can appear before the Court and be heard or any defence that he may wish to put up; at the same time, defendant cannot be allowed to frustrate or delay a legitimate claim by staying away from the Court proceedings and it is for such reason, law permits the Court to decree a suit ex parte---Once it is shown that the summons was 'duly served' an ex parte decree can follow and then execution can be levied against the defendant, who then becomes judgment-debtor.

(b) Administration of justice---

----Law helps the vigilant and not those who remain indolent in protection of their rights by sleeping over their infringement.

----Courts are bound by law and law does not require the Courts in administration of justice to make distinction between an ordinary litigant and the Government functionaries---No special treatment can be given.

Department of Agriculture and another v. Raees Khan and others 2015 SCR 1501 rel.

Raja Mazhar Waheed Khan, Additional Advocate-General for Appellants (Written arguments).

Shahzad Shafi Awan, Advocate for Respondents (Written judgments).

YLR 2022 SUPREME COURT AZAD KASHMIR 2454 #

2022 Y L R 2454

[Supreme Court (AJ&K)]

Present: Raza Ali Khan and Muhammad Younas Tahir, JJ

MEHARBAN HUSSAIN---Appellant

Versus

ZAHIDA KOUSAR---Respondent

Civil Appeal No.68 of 2020, decided on 23rd November, 2021.

(On appeal from the judgment and decree of the Shariat Appellate Bench of the High Court dated 30.10.2019 in Family Appeal No. 13 of 2017).

(a) Azad Jammu and Kashmir Family Courts Act, 1993 (XI of 1994)---

----S.5, Sched. & S.17---Suit for recovery of dowry articles---Provisions of Qanun-e-Shahadat/Evidence Act and Code of Civil Procedure not to apply---Un-signed list of dowry articles---Scope---Plaintiff filed a suit for recovery of dowry articles---Suit was partially decreed---Defendant challenged the judgment and decree through an appeal, which was dismissed---Contention of defendant was that list of dowry articles was fabricated as being not signed by anyone and not proved at all---Validity---No legal requirement of documenting the list of dowry articles existed in Nikahnama or in other document or list, like as required for the details of dower amount, prompt and deferred---In the society, when the parents were making preparations of the marriages of their daughters, in normal course of life, they did not indulge in making lists or keep record of receipts of the dowry articles to prove the fact of purchasing the same or giving the same to daughters at the time of marriage, to prove in any Court of law, rather parents prayed and were desirous of sustenance of the marriage of the daughters---In very few cases the parents prepared such like record, otherwise in normal routine, the record of financial accounts and receipts of the dowry articles were not kept/maintained---Plaintiff was not obliged to prove her case in stricto sensu according to principles and provisions of the Qanun-e-Shahadat, 1984, as it was required under ordinary civil proceedings in civil court or criminal proceedings in criminal courts---Defendant was unable to point out any misreading or non-reading of the evidence or the record by the Trial Court---Trial Court had rightly passed the judgment and decree after considering the evidence and the Shariat Appellate Bench of the High Court had not committed any error of law by maintaining the same---Appeal was dismissed.

Saleem Akbar Kayani v. Dr. Rehana Mansha Kayani and 4 others 2016 YLR 2851; Muhammad Islam v. Mst. Rashidah Sultana and 4 others 2013 CLC 698; Muhammad Habib v. Mst. Safia Bibi and others 2008 SCMR 1584 and Mst. Shakeela Bibi v. Muhammad Israr and others 2012 MLD 756 rel.

(b) Azad Jammu and Kashmir Family Courts Act, 1993 (XI of 1994)---

----S. 17---Provisions of Evidence Act (Qanun-e-Shahadat) and Code of Civil Procedure not to apply---Scope---Azad Jammu and Kashmir Family Courts Act, 1993, is a special law which has been enacted for adjudication of matrimonial disputes expeditiously and without falling prey to technicalities---Legislature, being appreciative of this, specifically excluded the operation of the Qanun-e-Shahadat,1984, from the proceedings of the Family Courts.

Saleem Akbar Kayani v. Dr. Rehana Mansha Kayani and 4 others 2016 YLR 2851; Muhammad Islam v. Mst. Rashidah Sultana and 4 others 2013 CLC 698 and Muhammad Habib v. Mst. Safia Bibi and others 2008 SCMR 1584 rel.

----S. 5, Sched. & S. 17---Suit for recovery of dowry articles---Provisions of Evidence Act (Qanun-e-Shahadat) and Code of Civil Procedure not to apply---Scope---Provisions of Qanun-e-Shahadat, 1984, are not applicable to proceedings before the Family Court---Sole statement of wife is sufficient to prove her claim of dowry articles and she is not required to prove the case in the terms of requirements of Qanun-e-Shahadat, 1984, by producing a certain number of witnesses in support of her claim along with recording of her own statement.

Mst. Shakeela Bibi v. Muhammad Israr and others 2012 MLD 756 rel.

Ch. Muhammad Suleman, Advocate for Appellant.

Miss. Nosheen Iqbal, Advocate for respondent.