YLR 2023 Judgments

2023 Y L R 336

[Federal Shariat Court]

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

MUJEEB UR REHMAN and 4 others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 02-I, Criminal Revision Petition No. 01-P and Criminal Murder Reference No. 01-I-P of 2021, decided on 29th April, 2022.

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

----Ss. 396, 427, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 40---Dacoity with murder, mischief causing damage to the amount of fifty rupees, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Disclosure made by the accused---Scope---Accused were charged for committing murder of the cousin of the complainant during the course of dacoity in odd hours of the night on highway---Apparently, disclosures of the accused persons giving information to the police after their arrest, in pursuance whereof, on the pointation of accused persons, the recovery of looted money and personal articles of the deceased was made from an almirah lying in a room of the house of accused, motercar and motorcycle used in the commission of subject crime, from the courtyard of his house and on by-pass road respectively, were the relevant and material pieces of evidence under Art. 40 of the Qanun-e-Shahadat, 1984---Arrest of the accused persons with recovery of looted huge cash amount of Rs.6,000,000/-, other personal articles of the deceased, together with the recovery of hired motorcar and motorcycle used in the commission of offence, with the crime weapons by use whereof the murder of the deceased was committed were also formidable circumstances admissible under Art. 21 of Qanun-e-Shahadat, 1984---Circumstances established that the prosecution had succeeded in proving its case against the accused persons beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 396, 427, 148 & 149---Dacoity with murder, mischief causing damage to the amount of fifty rupees, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Sentence, reduction in---Ocular account---Scope---Accused were charged for committing murder of the cousin of the complainant during the course of dacoity in odd hours of the night on highway---Record showed that the taxi driver, who had attended the deceased per chance shortly after the assault when the accused persons already decamped from the scene, had submitted state forward, consistent and confidence inspiring evidence on the issue of commission of offence at the place of occurrence---Similarly, complainant, who was cousin of deceased, reported the matter through a murasila, deployed there being Incharge Casualty, Hospital, which was later on incorporated in book under S.154, Cr.P.C., wherein he did not nominate anyone---Complainant merely pointed that he receiving the information about the murder of the deceased, who was being brought to the hospital, rushed to the hospital where he found the deceased dead, having firearm injuries---On the next day after namaz-e-janaza one witness told him that the deceased was bringing sixty lac for him---Complainant narrated such facts to Investigating Officer, who incorporated the same in his statement under S.161, Cr.P.C., which had been substantiated in their evidence by both the persons having also produced receipt containing endorsement receipt on its bottom in respect of the said amount of Rs. Sixsty lac---No animus could be attributed to any of the said witnesses---Said prosecution witnesses had supported the prosecution case, they were subjected to lengthy and searching cross-examination, but nothing could be elicited to shatter their testimony---Said witnesses remained consistent on all material particulars---No doubt there were some minor contradictions in their statements, but those being natural, because of lapse of such long time of more than six (06) years between the incident and their examination, were insignificant---Circumstances established that the prosecution had succeeded in proving its case against the accused persons beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Ali Raza alias Peter and others v. The State and others 2019 SCMR 1982; Siraj-ul-Haq and another v. The State 2008 SCMR 302; Naeem Akhtar and others v. The State 1993 PCr.LJ 769; Fazal Akbar and another v. The State through A.A.G and another 2013 PCr.LJ 369; Muhammad Latif v. The State PLD 2008 SC 503; Naveed Asghar and 2 others v. The State and others PLD 2016 Lah. 467; Rizwan Ashiq v. The State 2018 PCr.LJ Note 41; Khurshid v. The State PLD 1996 SC 305; Sheraz Tufail v. The State 2007 SCMR 518; Inayatullah v. The State PLD 2007 SC 237; The State v. Muhammad Abbasi and others 2015 PCr.LJ 1685; Abdul Baqi v. The State 2013 PCr.LJ 127; Hikmat Shah v. Bakhtiar Khan and another 2018 YLR 1168; Haji Khan and 2 others v. The State and others 1991 PCr.LJ 2110; Sohail Hameed v. Federation of Pakistan PLD 1993 FSC 44; 2017 SCMR 786; Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103; Asadullah and another v. The State and another 1999 SCMR 1034; Sarfaraz Khan v. The State and 2 others 1996 SCMR 188; Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047 and Sajid and another v. The State and another 1998 PCr.LJ 114 ref.

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

----Ss. 396, 427, 148 & 149---Dacoity with murder, mischief causing damage to the amount of fifty rupees, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of incriminating articles---Scope---Accused were charged for committing murder of the cousin of the complainant during the course of dacoity in odd hours of the night on highway---Reference to IMEI Numbers of the cell phones recovered from the accused persons and the suspected cell phones, pointing on the accused persons and clinching their presence at the venue of incident at the relevant time and so also before and after the incident---Recovery of huge robbed amount of Rs.6,000,000/- (sixty lac),various other personal articles of the deceased, hired motorcar and motorcycle used in the commission of the offence, from the accused persons, in pursuance of their disclosures---Blood collected from the place of incident, blood stains on the clothes of the deceased, blood stains on the currency notes (looted money), opined to be the blood of human origin of the same group---Recovery of two crime weapons from accused persons and their matching with the four empties, secured from the place of incident, inescapably framed the accused persons with that crime---Injuries sustained by the deceased were consistent with the medical evidence and the crime weapons recovered from the accused persons---Said various pieces of prosecution evidence were so naturally synchronized with another that every hypothesis of innocence of accused persons stand excluded and that was the best evidence available on the record, in circumstances of the case, with no paddling or overdoing and those pieces of evidence were found consistent with the truth and probability---Considering the common course of natural events, which led to an irresistible conclusion that it was a pre-planned dacoity in which the huge amount was robbed from the deceased after committing his murder during the course of dacoity by the accused persons---Circumstances established that the prosecution had succeeded in proving its case against the accused persons beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 396, 427, 148 & 149---Criminal Procedure Code (V of 1898), S. 342---Dacoity with murder, mischief causing damage to the amount of fifty rupees, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence--- Defence plea--- Scope---Accused were charged for committing murder of the cousin of the complainant during the course of dacoity in odd hours of the night on highway---Record showed that all the accused persons in their respective statements under S. 342, Cr.P.C., while giving answer to question had stated that they were not present on the cited date and time at the place of occurrence---Stating further that they were present at their respective residences, which needless to say, were situated at different areas and far away from each other as was evident from the title page of memo. of the appeal---However, none among them had established such alibi plea, by examining any person even from the inmates of their respective houses, which adversely reflected upon them---Circumstances established that the prosecution had succeeded in proving its case against the accused persons beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Ch. Zafar Ali Warraich and Muhammad Nabi for Appellants (in Criminal Appeal No.02-I of 2021 for Respondents in Criminal Murder Reference No.01-I of 2021 and in Criminal Revision Petition No.01-P of 2021).

Muhammad Ijaz Khan Sabi and Hazrat Rehman for Petitioner (in Criminal Revision Petition No.01-P of 2021).

Sardar Ali Raza, Additional Advocate General, Khyber Pakhtunkhwa and Ms. Sofia Noreen, Assistant Advocate General, Khyber Pakhtunkhwa for the State.

2023 Y L R 890

[Federal Shariat Court]

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

ASAD ALI---Appellant

Versus

Pir QAMAR ZAMAN and 3 others---Respondents

Criminal Appeal No. 03-K of 2021, decided on 8th December, 2022.

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

----S. 17(3)---Haraabah---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Delay in lodging FIR---Effect---Accused were charged for entering into the house of complainant looting cash amount and gold ornaments, and on resistance, causing injuries to two inmates---Record showed that the FIR was lodged after more than 03 hours of the incident---On receiving information the police of local Police Station immediately reached at the place of incident at about 07:00 a.m. where the complainant allegedly handed over the custody of two apprehended accused---Moreover, the statements of the witnesses under S. 161, Cr.P.C., were recorded after six days of the incident and lodgment of the FIR---No plausible explanation had been furnished for such an inordinate delay in lodgment of the FIR and in recording the statements of the witnesses---First Investigating Officer stated that Investigation of the crime remained with him for five days---During said 05 days complainant did not produce any witness before Investigating Officer for recording 161, Cr.P.C statement, and such inordinate delay in reporting the matter and recording the statements of the witnesses was incomprehensible---Delay in lodgment of the FIR is viewed with grave suspicion, and how much clouds of suspicion it throws on the seeds of prosecution, depends upon a variety of factors---In the present case, it required careful scrutiny when number of accused was large and delay in lodging FIR had resulted in embellishment, which was a creation of afterthought, assuming importance in absence of convincing explanation, which prima facie pointed out to fabrication of the prosecution story; and increasing the number of accused, by false implication of the innocent persons, throwing a very wide net and in the wake of previous hostility between the parties over the landed property, which was admitted in evidence by witness/brother of complainant---Such unexplained inordinate delay in lodgment of the FIR and in recording statements of the witnesses under S. 161, Cr.P.C., being significant could not be lost sight of---Under the given circumstances, the possibility of false implication of the accused, who had not been assigned any specific role in commission of the offence, by exaggeration in the number of accused, after consultations and deliberations, could not be ruled out---Circumstances established that the finding of acquittal rendered by the Trial Court was neither arbitrary nor was capricious, thus did not call for any interference---Appeal against acquittal was dismissed.

1993 PCr.LJ 128; 2013 SCMR 590; 1998 MLD 1107; 2005 PCr.LJ 1273 and 2018 PCr.LJ Note 57 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) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)---

----S. 17(3)---Haraabah---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Accused were charged for entering into the house of complainant looting cash amount and gold ornaments, and on resistance, causing injuries to two inmates---In the FIR, no specific role was assigned to the accused, but in the evidence, brother of the complainant stated that two accused persons robbed gold ornaments from their house and also robbed licensed weapon of his brother, however as per prosecution, accused were apprehended empty handed at the time of incident, as neither the alleged robbed ornaments of gold and/or licensed repeater were secured from them nor the weapons allegedly carried by them at the time of incident were recovered from them---Other witness did not ascribe any overt act to said accused---Injured witness who could be termed as star witness in the case, stated that co-accused fired upon him hitting his right leg, but he neither implicated the accused persons nor did he state about commission of robbery in their house---Circumstances established that the finding of acquittal rendered by the Trial Court was neither arbitrary nor was capricious, thus did not call for any interference---Appeal against acquittal was dismissed.

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

----S. 17(3)---Haraabah---Appreciation of evidence---Benefit of doubt---Appeal against acquittal---Contradictions in statements of witnesses---Accused were charged for entering into the house of complainant looting cash amount and gold ornaments, and on resistance, causing injuries to two inmates---Contradictions were found in statements of witnesses regarding as to how the accused were apprehended at the spot---According to witness/brother of complainant after 1 to 1½ hour police arrived at the place of incident, whereas the other witness stated that police itself came at place of incident within half an hour of incident---Injured witness did not state about arrival of police at the place of incident---According to the Investigating Officer, on receiving information about the incident, he along with Police Constables arrived at the place of incident where they saw sister and son of complainant lying injured and two accused persons lying injured in the veranda of the house whose custody was handed over to him by complainant in presence of mashirs and memo. of handing over the custody was prepared at 07:00 am---According to witnesses/ brothers of complainant no such document was prepared during that time, while injured witness did not state about preparation of memo. of handing over---Circumstances established that the finding of acquittal rendered by the Trial Court was neither arbitrary nor was capricious, thus did not call for any interference---Appeal against acquittal was dismissed.

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

----S. 17(3)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Haraabah---Appreciation of evidence---Benefit of doubt---Appeal against acquittal---Withholding material evidence---Accused were charged for entering into the house of complainant, looting cash amount and gold ornaments, and on resistance, causing injuries to two inmates---Undoubtly, the lady inmates were available in the house of the complainant, and one of them was shown to have accompanied the injured lady from the house of the complainant to the hospital and she was shown to have remained with injured lady, who died in hospital after three days of the incident---However, none of the lady inmates of the house of the complainant was examined by the prosecution---Investigating Officer admitted that he had not recorded 161, Cr.P.C statement of any lady inmate of the house of the complainant---Place of incident was thickly populated area but---Investigating Officer did not record the statement of any local person from the place of incident during investigation---According to the prosecution case as set-out in the FIR, the accused caused blows to injured lady, on her showing resistance to the robbery of ornaments of gold, but the weapon or article used for causing blows to her was no where mentioned in the FIR---Medical Officer, who initially examined deceased in injured condition at had found only two injuries on her person caused by hard and blunt substance as was evident from the provisional Medico-Legal Certificate issued by her but postmortem report revealed three injuries on the person of deceased, caused by firearm weapon---According to witnesses absconding co-accused made two straight fires, one hitting the mouth of deceased and the other hit the leg of injured, who also ascribed role of firing to said accused, but Medical Officer, who carried out postmortem on the dead body of deceased, stated that as per postmortem report deceased did not have any injury on her mouth---According to Medical Officer, he examined only two injured persons and no medical evidence relating to deceased the accused and injured co-accused was brought on record by the prosecution---Circumstances established that the finding of acquittal rendered by the Trial Court was neither arbitrary nor was capricious, thus did not call for any interference---Appeal against acquittal was dismissed.

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

----S. 417---Appeal against acquittal---Interference--- Scope--- Judgment of acquittal could not be interfered with unless it is proved that same is 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---While evaluating the evidence, difference is to be maintained in appeal against conviction and appeal against acquittal.

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.

Roshan Ali Azeem Mallah Counsel for Appellant.

Syed Tariq Ahmed Shah, and Syed Shazeel Hasan Counsel for Respondents.

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

2023 Y L R 1153

[Federal Shariat Court]

Before Khadim Hussain M. Shaikh, J

KASHIF ALI---Petitioner

Versus

The STATE---Respondent

Criminal Revision No. 2-K of 2022, decided on 19th December, 2022.

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

----Art. 4---Criminal Procedure Code (V of 1898), S.439---Recovery of liquor---Appreciation of evidence---Benefit of doubt---Chemical Examination Report---Sample form one bottle---Liquor in 48 bottles was allegedly recovered from accused---Conviction and sentence of imprisonment for 2 years awarded by Trial Court was maintained by Lower Appellate Court---Validity---Report of chemical examiner was related to one bottle out of 48 bottles and such report was unworthy of trust and reliance for safe custody, safe transmission, and handing over the sealed parcel that contained the one bottle which was not proved on record---Case of prosecution was full of doubts and prosecution failed to prove its case against accused---Single circumstance creating a reasonable doubt in prudent mind about guilt of accused was sufficient to extend its benefit to accused not as a matter of grace or concession but as a matter of right---Federal Shariat Court set aside conviction and sentence awarded by two courts below and accused was acquitted of the charge---Revision was allowed, in circumstances.

The State v. Bashir and others PLD 1997 SC 408; Din Muhammad v. The Crown 1969 SCMR 777; Muhammad Mumtaz v. The State 1997 SCMR 1011; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221 and Muhammad Mansha and Muhammad Akram v. The State 2009 SCMR 230 rel.

Sarmand Qurban Jiskani for Petitioner.

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

2023 Y L R 2015

[Federal Shariat Court]

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

ALI ASGHAR and another---Appellants

Versus

The STATE and others---Respondents

Jail Criminal Appeal No. 5-I and Criminal Appeal No. 6-K of 2020, decided on 5th November, 201.

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

----S. 302(b)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, haraabah---Appreciation of evidence---Benefit of doubt---Contradictions and improvements made by the witnesses---Accused were charged for robbing the complainant party and when brother of the complainant offered resistance in a scuffle, accused opened fire, killing him at the spot---Complainant had stated that he had mobile phone at the time of incident, while per alleged eye-witness, who happened to be his son, on the day of incident his father had no mobile phone---According to alleged eye-witness complainant had no mobile phone at the time of incident, but he went on to state that they informed their relatives on phone about the incident, therefore, mashirs reached at the scene of offence---While complainant had stated that said mashirs came at the place of vardhat on their hue and cries---Complainant and mashir had claimed that the place of incident was at the distance of two kilometers from their village; but per witness their village was at walking distance from the place of incident---Complainant had stated that the place of incident was situated adjacent to village "H" and village "B" was at a distance of about four acres from village "H" while a witness had stated that village "H" was situated at a distance of about 5/6 acres of land---According to one of the witnesses village "B" was at the distance of eight acres from the place of incident whereas per another witness village "B" was at the distance of 15/20 acres from the place of incident---Complainant had stated that they were going from southern side towards northern side to their village, while a witness had stated that they were going towards eastern side; whereas another witness stated that they were coming towards the alleged place of incident i.e. from eastern side to western side---As per complainant and a witness, the accused were standing on eastern side at the time of incident whereas according to another witness the accused were standing on western side at the time of incident---Per complainant and a witness, the accused persons had not robbed anything from them whereas another witness had stated that accused had robbed household things---One of the witnesses stated that his statement was recorded by Head Constable/Munshi of police station; police Official obtained his thumb impression on some documents but record revealed that no document, containing thumb impressions of said witness was produced by the prosecution in evidence---Complainant had stated that it was a dark night but he had one torch, which was in his hand and in the light of torch he identified the accused and, while proceeding towards Police Station he handed over the torch to the eye-witness, whereas per eye-witness when the complainant went to the police station, the torch remained with him---According to said witness, it was not in his knowledge whether the police had seized the torch as the case property or not---Complainant had stated that he had not produced the torch before the Investigating Officer, whereas according to eye-witness the complainant had produced the torch before the Investigating Officer and the police completed legal formalities with regard to the torch---On the contrary the Investigating Officer had stated that he had not seen any torch at the place of incident and, he made the mashirnamas on the headlights of police vehicle---Per complainant the deceased was fired at from a distance of one feet while one of the eye-witness stated that he saw the accused from a distance of 5/6 feet whereas another eye-witness stated that he saw the accused at a distance of two feet, but both of them did not disclose the distance from which the deceased was fired at---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, haraabah---Appreciation of evidence---Benefit of doubt---Delay in sending the empties and weapon of offence for expert opinion---Effect---Accused were charged for robbing the complainant party and when brother of the complainant offered resistance in a scuffle, accused opened fire, killing him at the spot---Report of Forensic Experts produced by the Police Official revealed that the empty of 30 bore pistol allegedly secured from the place of incident on 25.03.2013 and three pistols with live bullets allegedly recovered from the accused on 27.03.2013, were received in the office of Ballistic Expert on 03.04.2013 i.e. after eight days of recovery of the alleged empty from the place of incident and after six days of alleged recovery of weapons from the accused---Nothing had been brought on record by the prosecution to show that where such property remained for the intervening period nor any explanation about that had been furnished by the prosecution---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, haraabah---Appreciation of evidence---Benefit of doubt--- Defective investigation---Accused were charged for robbing the complainant party and when brother of the complainant offered resistance in a scuffle, accused opened fire, killing him at the spot---Perusal of the record showed that Investigating Officer had committed serious and grave mistakes either by not collecting evidence or by not presenting some very relevant pieces of evidence before the Trial Court---Hence, negligence of police, especially Investigating Officer cast a fatal blow to the prosecution case---Record showed that the blood stained clothes of the deceased were never taken into possession by the police; hence, were never produced in the Trial Court---Torch in the light of which the complainant and other witnesses saw and recognized all the three accused persons was never taken into custody; hence, was not produced in the court---Motorbike upon which all the accused persons were riding when they allegedly attempted to commit robbery and killed the deceased was not produced in the Trial Court, when the complainant was examined---Failure of the police to take possession of the relevant pieces of evidence in custody or not producing them in the court of law after taking their possession, either reflected their incompetency and or negligence on the part of Investigating Officer, causing fatal blow to the case of prosecution---Appeal against conviction was allowed, in circumstances.

Ghulam Shabir v. The State 1976 PCr.LJ 1063; Raja alias Dad Muhammad alias Dado v. The State 2013 MLD 1225; Shafqat Mehmood and others v. The State 2011 SCMR 537; Waqar Ahmad v. The State 2012 PCr.LJ 170; Sabir Ali alias Fauji v.The State 2011 SCMR 563 and Muhammad Hussain's case 1993 SCMR 1614 rel.

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

----S. 302(b)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, haraabah---Appreciation of evidence---Benefit of doubt---Accused were charged for robbing the complainant party and when brother of the complainant offered resistance in a scuffle, accused opened fire, killing him at the spot---Record showed that the incident was shown to have taken place at 09:00 pm and after the incident the complainant covered a distance of three kilometers to reach the police station and lodged his FIR at 09:15 p.m., and then after forming a police party, the Investigating Officer accompanying his police staff set out from the police station and after covering distance of three kilometers reached the place of incident where the mashirnama of place of incident and the danistnama of dead body of the deceased were shown to have been prepared at 09:30 pm i.e. within 15 minutes of lodging of the FIR, followed by preparation of lash chakas form at 09:35 pm within 05 minutes---Such condition of formalities in such short time span seemed incomprehensible--- Similarly, the reaching of co-villagers from a village, which was relatively at a greater distance to the place of crime upon hearing of the hue and cry and no person from village "H" and village "A", coming to the crime scene which were relatively nearer to the place of incident, was also incomprehensible, creating doubt in the story of the prosecution---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)---Qatl-i-amd, haraabah---Appreciation of evidence---Benefit of doubt---Night time occurrence---Source of light---Doubt---Accused were charged for robbing the complainant party and when brother of the complainant offered resistance in a scuffle, in response, accused opened fire, killing him at the spot---Torch in the light of which the complainant saw and recognized all the three accused persons was never taken into custody---Said torch was never produced in the Trial Court creating serious doubt in the prosecution's case---Question was as to how in a dark night upon a katcha path way of village when there was no other source of light, the complainant and other witnesses recognized all three accused persons---Appeal against conviction was allowed, in circumstances.

(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---Benefit of doubt---Delay of one day in recording the statements of eye-witnesses---Accused were charged for robbing the complainant party and when brother of the complainant offered resistance in a scuffle, accused opened fire, killing at the spot---Admittedly, the statements under S. 161, Cr.P.C., of the alleged eye-witnesses were recorded by the police on the next day of the incident---Although, prosecution claimed presence of the said alleged eye-witnesses at the place of vardat when police came and inspected the place of vardat and dead body and completed all the legal formalities, but no explanation for such an inordinate delay in recording statements of the alleged eye-witnesses had been offered by the prosecution---Testimony of such witnesses could not be safely relied upon---Appeal against conviction was allowed, in circumstances.

Muhammad Asif v. The State 2017 SCMR 486 rel.

(g) Criminal trial---

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

Akhtar Ali and others v. The State 2008 SCMR 6; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Muhammad Mansha v. The State 2018 SCMR 772; Muhammad Akram v. The State 2009 SCMR 230 and Muhammad Ilyas v. The State 1997 SCMR 25 rel.

Shamshad Ali Kassar for Appellant (in Jail Criminal Appeal No.5-I of 2020).

Mir Nawaz Kalhoro for Appellant (in Criminal Appeal No.6-K of 2020).

Respondents in person.

Hussain Bux Baloch, Addl. P.G. Sindh and Zahoor Shah, Addl. P.G. Sindh for the State.

Date of hearing: 3rd May, 2021 (in Jail Criminal Appeal No.5-I of 2020).

2023 Y L R 22

[Gilgit-Baltistan Chief Court]

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

NAIB KHAN---Petitioner

Versus

SULTAN WALI---Respondent

Writ Petition No. 243 of 2020, decided on 4th November, 2021.

Civil Procedure Code (V of 1908)---

----S. 10---Land Acquisition Act (I of 1894), S. 18---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Reference to Court---Stay of suit---Scope---Petitioner filed a suit for declaration against the respondent claiming ownership of the suit land; claimed that the suit land was acquired for construction of a road; that award was prepared in the name of respondent; that the compensation was paid to the respondent and that the respondent be directed by the Court to deposit the amount of award in the Court---Respondent filed an application under S.10, C.P.C. before the Trial Court with the contention that a case regarding the quantum of compensation under the award was sub judice before the Supreme Appellate Court---Trial Court stayed the suit and appeal against such order was dismissed---Validity---Object of providing S.10, C.P.C. was to avoid divergent judgments and opinions of different Courts regarding similar matter---Trial Court, First Appellate Court and Chief Court had also given their findings regarding the disputed land and now the matter was sub judice before the Supreme Appellate Court---No irregularity and illegality was found in the orders passed by courts below---Writ petition was dismissed.

Muntazir Abbes for Petitioner/ plaintiff.

None appeared for Respondents.

2023 Y L R 168

[Gilgit-Baltistan Chief Court]

Before Malik Inayat-ur-Rehman, J

AMJAD HUSSAIN---Petitioner

Versus

ZAFAR JANG and another---Respondents

Civil Revision No. 97 of 2020, decided on 25th October, 2021.

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

----S. 9---Arbitration Act (X of 1940), S.34---Civil Court to try all suits unless barred---Power to stay legal proceedings where there is an arbitration clause---Scope---Plaintiff assailed the rejection of his plaint as well as dismissal of his appeal--- Validity--- Plaintiff and defendants had entered into an agreement and the plaintiff had got sub-distributorship from defendants since 2012--- Sub-distributorship agreement between the plaintiff and defendants was accepted by both the parties and they had admitted the existence of arbitration clause in the agreement---In the light of the arbitration clause the impugned orders of courts below had been passed on the basis of correct appreciation of relevant law---Findings of the fact/law recorded concurrently by the courts below usually could not be interfered/ upset by the High Court in its revisional jurisdiction---Revision petition was dismissed.

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

----S.115---Revision petition---Concurrent findings---Scope---Findings of the fact/law recorded concurrently by the courts below usually cannot be interfered/upset by the High Court in its revisional jurisdiction.

Zafar Iqbal for Petitioner.

Ali Dad for Respondents.

2023 Y L R 364

[Gilgit-Baltistan Chief Court]

Before Ali Baig, C.J.

Syed WAJAHAT ALI SHAH---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 46 of 2022, decided on 1st April, 2022.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 322---Qatl-bis-sabab---Bail, grant of---Scope---Accused was alleged to have been a cause of the suicide of deceased lady, as such, he was charged under S. 322, P.P.C.---Deceased lady was fiancée of the accused---Before engagement with the accused, principal accused had sought hand of the deceased lady but the deceased and her family members had refused his offer---Principal accused was annoyed with the engagement---Principal accused had forced the deceased lady to break the engagement with the accused---Principal accused had blackmailed and harassed the deceased lady---Accused was not directly involved and no specific role was attributed to the accused---Offence under S. 322, P.P.C., was punishable only with diyat and the same did not fall within the prohibitory clause of S. 497, Cr.P.C.---Petition for grant of bail was allowed, in circumstances.

Shamshad Ali and Umer Hussain for Petitioner.

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

Sher Madad for the Complainant.

2023 Y L R 494

[Gilgit-Baltistan Chief Court]

Before Ali Baig, C.J.

Mst. FIZZA and 3 others---Petitioners

Versus

FIDA HUSSAIN and another---Respondents

Civil Revision No. 25 of 2021, decided on 25th June, 2022.

Civil Procedure Code (V of 1908)---

----S. 144--- Qanun-e-Shahadat (10 of 1984), Art.114--- Application for restitution---Estoppel---Scope---Petitioners assailed concurrent orders of courts below whereby the respondent's application under S. 144, C.P.C., was allowed---Validity---Petitioners had got share of their mother from the legacy of their maternal grandfather on the strength of judgments/decree of courts below which were set aside by the Chief Court on a technical ground---Petitioners were entitled to retain the suit property till disposal of their suit---Respondent had earlier filed an application for restitution/possession under S.47, C.P.C., which was unconditionally withdrawn, hence, he was estopped by his conduct and admission to file fresh petition for restitution/possession of suit land---Revision petition was allowed and the impugned orders were set aside.

Muhammad Yaseen Baltistani for Petitioners.

Zahid Abbas for Respondent No.1.

2023 Y L R 47

[High Court (AJ&K)]

Before Sadaqat Hussain Raja, Actg. C.J.

Raja ZAIN-UL-ABIDEN KHAN and others---Appellants

Versus

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

Writ Petitions Nos. 556, 588 and 588-A of 2021, decided on 28th April, 2021.

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

----Art. 44---Writ petition---Necessary parties, non-impleading of--- Locus standi--- Scope--- Petitioners challenged Azad Jammu and Kashmir Elections Amendment Act, 2021, dated: 08.02.20221 to the extent of amendment in S. 24 of Azad Jammu and Kashmir Elections Act, 2021 and further a direction was sought to the respondents not to remove the petitioners and other State subjects from the voters list according to which they were entitled to vote on temporary addresses---Validity---All the beneficiaries were necessary party but the petitioners had failed to implead them as party and in the absence of necessary party, no direction could be issued---Petitioners were not aggrieved persons, therefore, they could not have filed the writ petitions---Petitioners had no locus standi to file the writ petition---Petitioners themselves had got mentioned their permanent residences in the CNICs---No legal right of petitioners appeared to have been infringed, therefore, they did not fall within the definition of aggrieved persons---Writ petitions were dismissed, in circum-stances.

Shahbaz Khan v. Election Commission of Pakistan through Chief Election Commission, Islamabad PLD 2003 Lah. 125; Zahid Mehmood Shah and 24 others v. Azad Government and 14 others 2011 SCR 159 and Shafqat Hayyat v. Muhammad Shahid Ashraf and 18 others 2005 SCR 57 rel.

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

----Art. 44---Writ petition---Necessary party--- Scope--- No writ can be issued in absence of a necessary party.

Shahbaz Khan v. Election Commission of Pakistan through Chief Election Commission, Islamabad PLD 2003 Lah. 125; Zahid Mehmood Shah and 24 others v. Azad Government and 14 others 2011 SCR 159 and Shafqat Hayyat v. Muhammad Shahid Ashraf and 18 others 2005 SCR 57 rel.

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

----Art. 44--- Writ petition---Pro bono publico---Scope---Every person by his own sweet will cannot file the writ petition as pro bono publico until and unless he fulfills the conditions to invoke the constitutional jurisdiction of High Court---Petitioner while invoking such jurisdiction has to show that he is litigating firstly, in public interest and secondly, for public good or for welfare of general public.

Col. (Retd.) Muhammad Akram v. Federation of Pakistan through Secretary, Ministry of Defence and others 1998 SCMR 2073 and Ghiasul Haq and others v. Azad Government of the State of Jammu and Kashmir and others PLD 1980 SC AJ&K 5 ref.

Javed Ibrahim Paracha v. Federation of Pakistan and others PLD 2004 SC 482 and Fazal Mehmood Baig, Advocate v. The University of Azad Jammu and Kashmir and others decided on 06.06.2017 rel.

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

----Art.44---Writ petition---Locus standi---Scope---Only a person who has suffered legal injury can file a writ petition for redressal of his/her grievance and no third party can be permitted to have access to the Court for the purpose of seeking redressal for the person injured.

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

----Art.44---Writ petition---Locus standi---Scope---Judicial redress is available to a person who has suffered a legal injury by reason of violation of his/her legal right or legally protected interest by the impugned action of the State or a public authority or any other person or who is likely to suffer a legal injury by reason of threatened violation of his/her legal right or legally protected interest by any such action---Basis of entitlement to judicial redress is personal injury to property, body, mind or reputation arising from violation, actual or threatened, of the legal right or legally protected interest of the person seeking such redress.

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

----Art.44---Writ petition---Locus standi---Scope---Person aggrieved must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something.

Raja Zulqarnain Abid Khan, Sajid Hussain Abbasi and Raja Sajjad Ahmed Khan for Petitioners.

2023 Y L R 402

[High Court (AJ&K)]

Before Sardar Muhammad Ejaz Khan, J

SALEEMA BEGUM---Appellant

Versus

SHER ALI KHAN and 4 others---Respondents

Civil Appeal No. 237 of 2021, decided on 6th June, 2022.

(a) Azad Jammu and Kashmir Pre-emption Act (XIV of 2016)---

----Ss. 13, 29 & 30---Suit for pre-emption--- Limitation--- Notice of registration of sale deed---Scope---Appellant filed a suit for pre-emption---Trial Court rejected the plaint for being time barred---Appeal filed before District Judge was also dismissed---Validity---Suit was filed after more than 120 days of registration of sale deed---Limitation was not always a mixed question of facts and law, which varied from case to case but in presence of a special law where the limitation was provided as 120 days, the same could not be condoned particularly when the case of the appellant was not that the requisite requirements of S. 30 of the Azad Jammu and Kashmir Pre-emption Act, 2016, pertaining to issuance of notice, registration of sale deed had not been complied with and on account of which it could safely be concluded that registration of sale deed was itself a proclamation for which the case of appellant fell within the ambit of S. 29(a) of the Azad Jammu and Kashmir Pre-emption Act, 2016---As per S. 29 of Azad Jammu and Kashmir Pre-emption Act, 2016, the period of limitation for filing a suit to enforce right of pre-emption had been defined as 120 days from the date of registration of sale deed---Registration of sale deed was a notice to the general public at large---Appeal was dismissed.

Muhammad Khan v. Muhammad Hussain and 2 others 2002 YLR 1353 distinguished.

Ishtiaq Ahmed Khan and others v. Gul Taj Khan Civil Appeal No.351 of 2015 and Rahim Dad and 3 others v. Abdul Kareem and 3 others 1992 MLD 2111 rel.

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

----O. VII, R. 14--- Production of document on which plaintiff sues---Scope---Documents under challenge must be accompanied with the suit.

Babir Yaqoob Khan Mughal for Appellant.

2023 Y L R 485

[High Court (AJ&K)]

Before Sardar Muhammad Ejaz Khan, J

IKRAM-UL-HASSAN and others---Petitioners

Versus

STATE through Additional Advocate General and others---Respondents

Revision Petitions Nos. 127, 253, 254, 64-A, 255, 256, 257, 258 of 2021, 6, 7 and 19 of 2022, decided on 26th April, 2022.

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

----S. 497---Penal Code (XLV of 1860), Ss. 465, 466, 467, 468, 471, 409, 419 & 420---Prevention of Corruption Act (II of 1947), S. 5---Forgery---Criminal mis-conduct---Bail, refusal of---Scope---Allegations levelled against the accused persons pertained to preparing fake documents, making forged entries in record, misappropriation of a huge amount from Government treasury and fixing stamps and signs of different persons including Sub-Registrar---Principal accused was the registration clerk in the office of Sub-Registrar who had misused his assignment---Characters of accused persons had become apparent after investigation and specific roles had been attributed to them, which were corroborated by documentary evidence as well as statements of witnesses recorded under S. 161, Cr.P.C.---Offence with which the accused persons were charged fell within the prohibitory clause of S. 497, Cr.P.C.---In such like cases refusal of bail was a rule and acceptance was an exception---Accused persons had failed to point out any special feature which could bring their cases in any of the exceptions---Accused persons had also failed to substantiate that their involvement in the cases was a product of mala fide or ill-will on the part of complainants or investigation agency---Case of one of the accused persons was different from others as he was only a marginal witness of power of attorney and he was not involved in other chain of offences, as such, he was admitted to bail---Bail applications of other accused persons were dismissed.

Shoukat Ali v. The State and another 2009 PCr.LJ 19; Manzoor Hussain v. Ghulam Abbas and another 2014 SCR 424 and Zulfiquar Ali and another v. The State 1990 PCr.LJ 822 rel.

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

----S.497---Bail---Tentative assessment---Scope---Neither proper nor permissible for the Court at the bail stage to dive deep into the merits of the case rather only tentative assessment of the material collected by the investigating agency has to be made.

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

----S. 497---Bail---Further inquiry---Scope---Plain reading of S. 497, Cr.P.C. shows that no Court is empowered to release an accused on bail on the ground of further inquiry without first coming to the conclusion that there are no reasonable grounds for believing that the accused has not committed non-bailable offence, hence, for making the case of further inquiry, there is no hard and fast rule because each case will turn on its own peculiar facts and circumstances.

Ghulam Abbas v. State 2005 PCr.LJ 244; Parveen Akhtar v. State 2002 SCMR 1886 and Hazurdad v. Sajid Khan 1998 PCr.LJ 633 rel.

Masood A. Sheikh for Petitioners (in Revision Petition No. 127 of 2021).

Pirzada Muhammad Sajjad, A.A.G. on behalf of official Respondents for Respondents (in Revision Petition No. 127 of 2021).

Abdul Hameed for Petitioners (in Revision Petition No. 253 of 2021).

Pirzada Muhammad Sajjad, A.A.G. for the State (in Revision Petition No. 253 of 2021).

Abdul Hameed for Petitioners (in Revision Petition No. 254 of 2021).

Pirzada Muhammad Sajjad, A.A.G. for the State (in Revision Petition No. 254 of 2021).

Abdul Hameed for Petitioners (in Revision Petition No. 64-A of 2021).

Pirzada Muhammad Sajjad, A.A.G. for the State (in Revision Petition No. 64-A of 2021).

Ch. Khurram Saif Ali for Petitioners (in Revision Petition No. 6 of 2022).

Pirzada Muhammad Sajjad, A.A.G. for Official Respondents (in Revision Petition No. 6 of 2022).

Sardar Hamid Raza for Petitioners (in Revision Petition No. 7 of 2022).

Pirzada Muhammad Sajjad, A.A.G. for the State (in Revision Petition No. 7 of 2022).

Sardar Hamid Raza for Petitioners (in Revision Petition No. 19 of 2022).

Pirzada Muhammad Sajjad, A.A.G. for the State (in Revision Petition No. 19 of 2022).

Abdul Hameed for Petitioners (in Revision Petition No. 255 of 2021).

Pirzada Muhammad Sajjad, A.A.G. for the State (in Revision Petition No. 255 of 2021).

Abdul Hameed for Petitioners (in Revision Petition No. 256 of 2021).

Pirzada Muhammad Sajjad, A.A.G. for the State (in Revision Petition No. 256 of 2021).

Abdul Hameed for Petitioners (in Revision Petition No. 257 of 2021).

Pirzada Muhammad Sajjad, A.A.G. for the State (in Revision Petition No. 257 of 2021).

Abdul Hameed for Petitioners (in Revision Petition No. 258 of 2021).

2023 Y L R 2065

[High Court (AJ&K)]

Before Sardar Muhammad Ejaz Khan, J

NADIA ALAM---Petitioner

Versus

The STATE through Advocate General Azad Jammu and Kashmir and 3 others---Respondents

Criminal Miscellaneous No. 87 of 2023, decided on 14th March, 2023.

Criminal Procedure Code (V of 1898)---

----S. 491---Guardians and Wards Act (VIII of 1890), S. 25---Habeas Corpus petition---Custody of minor---Interim custody--- Scope--- Petitioner/mother sought production of alleged detenue/ minor from the unlawful custody of minor's father---Minor who was of tender age needed constant care of mother and it is a universal truth that there cannot be any substitute for a mother and that the lap of mother is God's own cradle for a child---Custody of minor with the father was improper, if not illegal---High Court on account of an interim measure can grant custody of minor to his/her lawful guardian even if a case is pending in the Guardian Court---Petition was accepted and the custody of the minor was handed over to the mother.

Mst. Zarmeen v. Dr. Omer Mahayud-din Shekh and others 2013 MLD 1640 rel.

PLD 2012 SC 758; 1996 CLC 1; PLD 2008 Kar. 198; 2016 MLD 801; 2016 MLD 1061; 2019 MLD 1502; 2020 YLR Note 6 and 2020 YLR 401 distinguished.

Muhammad Sajid Malik for Petitioner.

Raja Saeed Khan, A.A.G. for the State.

Mujeeb Alam Head Constable No. 322 Police Station Kotli.

2023 Y L R 63

[Islamabad]

Before Miangul Hassan Aurangzeb and Arbab Muhammad Tahir, JJ

ANF---Appellant

Versus

ADNAN RAFIQUE---Respondent

Criminal Appeal No. 79 of 2021, decided on 28th June, 2022.

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

----S. 32---Articles connected with narcotics---Scope---Prosecution assailed order passed by Trial Court whereby it had ordered return of the vehicle to the claimant/respondent---Held; it was not the case of the prosecution that the respondent had any nexus with the commission of the alleged offence---Respondent was also not accused in the subject case---Respondent was registered owner of the vehicle with no rival claimant---Knowledge or connivance of the respondent had remained unsubstantiated during the trial, therefore, under the principle, the vehicle was not liable to confiscation---Impugned order did not require interference---Appeal was dismissed.

Sohail Khan Jadoon, SSPP (ANF) for Appellant.

Muhammad Asghar Ali Mubarak for Respondent.

2023 Y L R 89

[Islamabad]

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

ALI JAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 71 of 2017, decided on 24th November, 2020.\

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S.164---Qatl-i-amd---Appreciation of evidence--- Blind murder--- Proof--- Benefit of doubt---Confessional statement, non-corroboration of--- Motive, failure to prove---Supplementary statement, delay in recording---Accused was convicted by Trial Court who was sentenced to death--- Validity--- Crime related to murder of deceased was unseen and blind---Complainant nominated accused through supplementary statement which was recoded after twenty one days from date of registration of F.I.R.---Motive described by complainant in his supplementary statement could not be proved during trial---Accused in his confessional statement recorded under S. 164 Cr.P.C. gave different version relating to motive and that too did not corroborate with evidence brought on record by prosecution---Accused in his confessional statement stated that he had fired twice from fire arm weapon when deceased had her back towards him---Such version contradicted medical evidence as it described two entry wounds, one on the back and the other on front of body of deceased---Magistrate who recorded statement of accused under S.164, Cr.P.C. did not comply with mandatory requirements prescribed under law---Neither motive described in statement recorded under S. 164, Cr.P.C. nor version stated in supplementary statement belatedly recorded by complainant could be proved---Testimony of complainant did not inspire confidence and prosecution failed to establish its case beyond a reasonable doubt---High Court extended benefit of doubt and set aside conviction and sentence awarded to accused---Appeal was allowed, in circumstances.

Nasir Mehmood and another v. The State 2015 SCMR 423; Dadullah and another v. The State 2015 SCMR 856; Hashim Qasim and another v. The State 2017 SCMR 986 and Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 ref.

Syed Gohar Ali Zaidi, Asghar Haider and Huma Jamil Babar for Appellant.

Hafiz Ghulam Afzaal Raja for the Complainant/Respondent.

Zohaib Hassan Gondal, State Counsel.

2023 Y L R 479

[Islamabad]

Before Arbab Muhammad Tahir, J

ABDUL HAMEED---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 497-BC of 2022, decided on 17th May, 2022.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302, 201 & 34---Qanun-e-Shahadat (10 of 1984), Art. 40---Qalt-i-amd, causing disappearance of evidence of offence or giving false information to screen offender and common intention---Bail cancellation of--- Information received from the accused may be proved--- Scope--- Accused, during investigation, had disclosed all the material particulars with regard to hatching of conspiracy for the murder of her husband---Perusal of disclosure made by the accused revealed that she had got married with the deceased and just after 28 days of the marriage, she in connivance with the co-accused hatched a conspiracy in order to get rid of her husband, wherein she had played an active role---Accused had given some amount to co-accused for the purchase of pistol in order to fulfill her evil design---In addition, she had treacherously made her husband travel along with her to the place of incident---Co-accused had got recovered the crime weapon which, as per report of Forensic Laboratory, had matched with the empties collected from the crime scene---Disclosure attributed to accused was not a simple disclosure but her disclosure ostensibly fell within the ambit of Art. 40 of the Qanun-e-Shahadat, 1984---Alleged offence not only fell within the ambit of prohibitory clause of S. 497, Cr.P.C., but also entailed capital punishment---Impugned order was not legally sustainable, it was accordingly set aside and the post-arrest bail granted to the accused was recalled.

2020 SCMR 2089; Abdul Majeed Afridi v. The State and Abdul Latif Afridi Crl. P. No. 632 of 2021; Criminal Petitions Nos. 1459/2020, 1523/2020, 970 to 976/2021 and Criminal Petition No. 1145-L of 2020 and 2010 SCMR 580 ref.

Noor Aslam v. The State 2021 SCMR 1225; Mst. Askar Jan and others v. Muhammad Daud and others 2010 SCMR 1604; Samilullah and another v. Laiq Zada and another 2020 SCMR 1115 and Maqbool Ahmed Mahessar and others v. National Accountability Bureau through its Chairman and others 2021 SCMR 1166 rel.

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

----Art. 40---Information received from accused may be proved---Scope---If the statement of accused before the police is supported by the discovery of a new fact it may be presumed to be true and not to have been extracted---There should be information or statement of the accused before the police and on the basis of said information or disclosure, a new fact is discovered.

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

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

----S. 497---Bail---Scope---No hard and fast rule exists to give exhaustive reasoning, while deciding a bail matter as only tentative assessment is to be made but it does not mean that the bail order is made in a slipshod manner without appreciating material facts---Such type of dispensation, in no way, can be termed justified, well-reasoned and in accordance with the principles of natural justice---I such does not qualify status of a well-reasoned order, being devoid of reasons, rational with the facts of the case.

Sajjad Hussain Malik for Petitioner/ Complainant.

Shahid Mahmood Langrial for Respondent No.2/accused.

2023 Y L R 502

[Islamabad]

Before Arbab Muhammad Tahir, J

TAHSEEN SHAUKAT through Special Power of Attorney, Islamabad---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, ISLAMABAD and 3 others---Respondents

Writ Petition No. 1020 of 2021, decided on 8th March, 2022.

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

----Ss. 3 & 4---Prevention of illegal possession of property---Cognizance of offence---Pendency of civil litigation---Scope--- Complainant assailed the dismissal of his complaint by the Trial Court at initial stage---Police (S.H.O.) concerned had reported that the complainant was in possession of the land before the filing of complaint and that the respondents were in illegal possession of the same---Complainant had given the date and time of the alleged dispossession and had also given the account of incident wherein it was stated that about 20-30 persons had taken illegal possession of the subject land, constructed a room and the pictures were also tendered---No justification existed to dismiss the complaint in cursory manner by overturning the incriminating material which, prima facie, supported the alleged forceful dispossession---Constitutional petition was allowed, impugned order was set aside and the Trial Court was directed to decide the complaint in accordance with law.

PLD 2007 SC 9; 2019 PCr.LJ 1023 and 2017 CLD 519 ref.

2016 SCMR 1931 rel.

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

----Ss. 3 & 4---Prevention of illegal possession of property---Cognizance of offence---Pendency of civil litigation---Scope---Any act which entails civil liability under Civil Law as well as criminal penalty under Criminal Law such as Illegal Dispossession Act, 2005, then a person can be tried under both kinds of proceedings, which are independent of each other---No one can be allowed to take law in his own hands and unlawfully dispossess an owner or lawful occupier of an immovable property and then seek to thwart the criminal proceedings against him under the Illegal Dispossession Act, 2005, on the pretext that civil litigation on the issue is pending adjudication between the parties in a court of law---Irrespective of any civil litigation that may be pending before any Court, where an offence, as described in the Illegal Dispossession Act, 2005, has been committed, the proceedings under the said Act can be initiated as the same would be maintainable in law.

2016 SCMR 1931 rel.

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

----Ss. 3 & 4---Prevention of illegal possession of property---Cognizance of offence---Pendency of civil litigation---Scope---Complaint under the Illegal Dispossession Act, 2005, is maintainable even where civil litigation is going on while a person can be tried under both kinds of proceedings (civil as well as criminal) which are independent of each other, therefore, a complaint cannot be dismissed summarily on the ground of maintainability due to existence of civil dispute between the parties.

2016 SCMR 1931 rel.

(d) Administration of justice---

----While forming its opinion, it is bounden duty of the Court to go through the record made available on file and then to form its opinion which was to be rationale with the facts---Opinion was to be backed by the reasons and in case of any contrary view, it is mandatory to advance reasons.

Usman Jillani for Petitioner.

Raja Mazhar Ali for Respondent No.1.

2023 Y L R 637

[Islamabad]

Before Aamer Farooq, J

LIAQAT ALI---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU---Respondent

Writ Petition No. 985 of 2020, decided on 26th March, 2020.

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

----S. 401---Pakistan Prisons Rules, 1978, Rr.143 & 146---Suspending or remitting sentence---Bail, grant of---Powers of Provincial Government--- Scope---Provincial Government and jail authorities, under S. 401, Cr.P.C., as well as Rr. 143 & 146 of Pakistan Prison Rules, 1978, have ample power to release any prisoner by suspension or remission of sentence or grant of bail, where circumstances, so warrant.

Imran Khattak v. Sofia Waqar Khattak 2014 SCMR 122 rel.

(b) National Accountability Ordi-nance (XVIII of 1999)---

----S. 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Bail, grant of---Pandemic---Unhygienic living conditions---Petitioners sought their release on bail due to pandemic and unhygienic living conditions in jail---Validity---Central Jail, Rawalpindi (Adyala Jail) was over-crowded and prisoners were packed in small cells without basic facilities---Health care facilities, provided in jail hospital were not up to the mark---If any one prisoner had become Corona Virus positive, chances of spreading of the same to entire prison population or persons coming in contact with him, were immense---All over the world, policy of social distancing and self-quarantine was being promoted, which could not even be imagined in a place like Adyala Jail---High Court allowed all petitioners to be released on bail---Constitutional petition was allowed in circumstances.

Imran Khattak v. Sofia Waqar Khattak 2014 SCMR 122; Amir Lutuf Ali Zardari v. Province of Sindh 2019 CLC 224; The State v. District Administration' (Criminal Miscellaneous No. 214 of 2020); Mian Muhammad Shahbaz Sharif v. The State and others 2020 PCr.LJ 213; Talat Ishaq v. NAB and others PLD 2019 SC 112 and Syed Arsalan Ahmed, Syed Usman Ali v. The State through Chairman, National Accountability Bureau, Islamabad (Civil Petition No.172 of 2020 and Criminal Petition No.65 of 2020) rel.

Shah Khawar, Shakeel-ur-Rehman and Hamid Nawaz for Petitioners.

2023 Y L R 701

[Islamabad]

Before Athar Minallah, C.J.

NASEEM ANJUM---Petitioner

Versus

DIRECTOR GENERAL, F.I.A., ISLAMABAD and 8 others---Respondents

Writ Petitions Nos. 4645 of 2021 and 965 of 2022, decided on 20th September, 2022.

Federal Investigation Agency (Inquiries and Investigations) Rules, 2002---

----R. 5---Police Rules, 1934, R. 25.7---Constitution of Pakistan, Art. 199---Quashing of FIR---Initiation of inquiry and registration of criminal case---Case which may be lawfully investigated in more local areas than one---Scope---Questions before High Court were whether the Superintendent of Police was empowered to transfer cases registered at a police station to the Federal Investigation Agency and whether the Federal Investigation Agency could have registered fresh criminal cases without complying with the procedure prescribed under the Federal Investigation Agency (Inquiries and Investigations) Rules, 2002---Validity---Before transferring cases to the Federal Investigation Agency, the requirements prescribed under Rr. 24.4 to 25.7 of the Police Rules, 1934, were not complied with---No inquiry was conducted by the Federal Investigation Agency and the criminal cases were registered on the dictation of the Superintendent of Police---Registration of criminal cases by the Federal Investigation Agency in a perfunctory manner besides being in violation of Federal Investigation Agency Act, 1974, read with Federal Investigation Agency (Inquiries and Investigations) Rules, 2002, were also contrary to the principles and law laid down by the Supreme Court in "Mst. Sughran Bibi v. The State" [PLD 2018 SC 595]---Criminal cases registered by the Federal Investigation Agency were quashed---Constitutional petitions were allowed.

Raja Muqsit Nawaz Khan, Raja Rizwan Abbasi, Shaharyar Tariq, Syed Qamber Abbas, Qasim Nawaz Abbasi for Petitioners, in their respective petitions.

Abdul Wahid Qureshi for Respondents.

Ahsan Raza Kazmi, D.A.G.

2023 Y L R 749

[Islamabad]

Before Athar Minallah, C.J.

MONDAY ERIMA PAUL---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 251-B of 2022, decided on 15th March, 2022.

Criminal Procedure Code (V of 1898)---

----S. 497---Customs Act (IV of 1969), Ss. 2(s), 16, 156(1)(8) & 156(1)(9)---Smuggling of narcotics---Bail, refusal of---Scope---Accused was apprehended on his arrival at an airport where it was found that he had concealed 1350 grams of cocaine in his body; accused was referred to hospital where 75 capsules were recovered---Factor of conscious knowledge could not be ruled out---Substantial quantity of contraband substance was recovered from capsules concealed in the body of the accused---Petition was dismissed and bail was refused.

Zaheer Ullah Jan for Petitioner.

M. D. Shahzad and Muhammad Amin Feroz Khan for the Customs and State Counsel.

2023 Y L R 1123

[Islamabad]

Before Tariq Mehmood Jahangiri, J

ASIM IRFAN AHMAD---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, ISLAMABAD and others---Respondents

Writ Petition No. 1179 of 2021, decided on 30th December, 2021.

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

----Ss. 13 & 17--- Enforcement of decrees--- Scope--- Family Court may follow the procedure as contained in the Civil Procedure Code for execution of a decree.

Muhammad Ramzan v. Ali Hamza and others PLD 2016 Lah. 622 ref.

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

----S. 13--- Enforcement of decrees---Scope---Plain reading of S. 13(3) of the Family Courts Act, 1964 makes it explicitly clear that the process of recovery through arrears of land revenue will come in operation only when the Family Court while passing the decree has expressly directed to do so.

Muhammad Amin v. Judge, Family Court, Sahiwal and 3 others 2015 YLR 316 rel.

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

----S. 5---Jurisdiction of Family Court---Scope---Family Court is a quasi-judicial forum which can draw and follow its own procedure provided such procedure is not against the principles of fair hearing and trial.

Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others 2014 SCMR 1365 rel.

(d) Administration of justice---

----A person who seeks equity must approach the Court with clean hands.

2000 CLC 623 ref.

Shafqatullah and others v. District and Sessions Judge, Nowshera, N.W.F.P. and 4 others 2001 SCMR 274 rel.

(e) Constitution of Pakistan---

----Art. 199---Constitutional petition---Laches---Scope---Where constitutional petition was filed with a delay of more than one year and three months, High Court declared the same to be not maintainable on the principle of laches.

2016 SCMR 183; PLD 2016 SC 872; 2019 SCMR 1720; PLD 2016 SC 514 and 2021 PLC (C.S.) 951 ref.

Ahmed and 25 others v. Ghama and 5 others 2005 SCMR 119 rel.

(f) Constitution of Pakistan---

----Art. 199---Constitutional petition---Concurrent findings---Scope---In case of concurrent findings of the courts below, scope of the constitutional petition becomes very limited.

2008 YLR 2309 and PLD 2008 Kar. 2005 ref.

(g) Constitution of Pakistan---

----Art. 199---Constitutional petition---Writ of certiorari---Scope---Certiorari is only available to quash a decision for an error of law---It will also be issued for correcting errors of jurisdiction when an inferior Court or a tribunal acts without jurisdiction or in excess of its jurisdiction, or fails to exercise its jurisdiction or where the Court or a tribunal acts illegally in exercise of its undoubted jurisdiction and it decides a matter in violation of the principle of natural justice---High Court while issuing a writ of certiorari acts in exercise of supervisory and not appellate jurisdiction---High Court in exercise of its writ jurisdiction will not review the findings of facts reached by the inferior Court or a tribunal.

2020 SCMR 2155; 2020 SCMR 260; 2019 SCMR 919; PLD 2018 SC 28 and PLD 2007 SC 45 ref.

Shahzad Kiyani, Tahir Afzal Abbasi and Raja Nisar ul Haq Abbasi for Petitioner.

2023 Y L R 1246

[Islamabad]

Before Tariq Mehmood Jahangiri and Babar Sattar, JJ

RAHEEM ULLAH KHAN---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No. 121 of 2022, decided on 15th March, 2022.

(a) Criminal trial---

----Fugitive disentitlement---Absconsion of accused---Refusal of courts to hear appeals filed by obsconders---Superior courts have recognized the doctrine of fugitive disentitlement to the extent of criminal appeals or related criminal matters---Superior courts have refused to hear appeals filed by absconders in criminal matters on the basis of equitable principles, such as; (i) Courts will not act in aid of injustice; (ii) Courts will not allow abuse of process of Court; (iii) Essential condition of administration of justice that persons concerned should submit to the due process of justice (absconders violate this basic principle of administration of justice); (iv) No one can be allowed to take advantage of their own wrong; (v) Allowing an absconder relief would amount to placing premium on absconsion and will amount to stultification of the authority of the Court by an unlawful act, which obviously cannot be the intention of the law; (vi) Absconsion involves contempt of the process and authority of the Court; (vii) Power of Attorney or petition executed by a fugitive of law is not well constituted and therefore not entertainable; (viii) Absconder loses right to audience before a Court.

Chan Shah v. The Crown PLD 1956 FC 43; Gul Hassan and another v. The State PLD 1969 SC 89; Hayat Bakhsh v. The State PLD 1981 SC 265; Awal Gul v. Zawar Khan and others PLD 1985 SC 402; The State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322; The State v. Haji Nasim-ur-Rehman PLD 2005 SC 270 and Sharjeel Inam v. Federation of Pakistan and others 2017 YLR 2423 rel.

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

----S. 497--- Bail--- Absconsion of accused---Scope---In relation to bail, the question of absconsion is a relevant consideration in grant of bail, but refusal of bail to an absconder is not an absolute rule, once he surrenders to the law---Where an absconder is seeking protective bail to be able to surrender before the competent court and provides a reasonable explanation for his abscondence, the court may in its discretion grant transitory bail to uphold the person's right to access to justice.

2023 Y L R 1387

[Islamabad]

Before Tariq Mehmood Jahangiri, J

MUHAMMAD ISLAM KHAN---Appellant

Versus

ISLAMABAD CLUB through Administrator and another---Respondents

Writ Petition No. 1385 of 2022, decided on 19th April, 2022.

Civil Procedure Code (V of 1908)---

----O.XXI, R.1---Constitution of Pakistan, Art. 199--- Constitutional petition---Maintainability--- Unconditional with-drawal of civil suit---Non-statutory rules---Effect---Petitioner was aggrieved of termination of his membership of respondent club---Earlier petitioner assailed same matter before Civil Court and then withdrew his suit unconditionally, thereafter invoked Constitutional jurisdiction of High Court--- Validity--- Petitioner neither applied for grant of permission to file fresh suit, nor Trial Court granted any such permission---On same cause of action, second suit could not be filed---High Court while exercising jurisdiction under Art. 199 of the Constitution in matters pertaining to civil nature can validly and duly resort to provisions of Civil Procedure Code, 1908, which are attracted and applied until and unless such application is excluded by law---Respondent club was a statutory body, but service rules made by the committee of the club were non-statutory---When rules are non-statutory in nature, enforcement through constitutional jurisdiction of High Court was not inconsonance with law and constitutional petition was not maintainable---High Court in exercise of constitutional jurisdiction declined to interfere in the matter--- Constitutional petition was dismissed, in circumstances.

Khawaja Bashir Ahmed and Sons (Pvt.) Ltd. v. Messrs Martrade Shipping and Transport and others PLD 2021 SC 373; Muhammad Yar (Deceased) through L.Rs. and others v. Muhammad Amin (Deceased) through L.Rs. and others 2013 SCMR 464; Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid 1993 SCMR 1171; Province of Punjab through Collector, Sialkot v. Muhammad Irshad Bajwa 1999 SCMR 1555; Ardeshir Cowasjee and others v. Karachi Building Control Authority and others PLD 2004 SC 70; Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Muhammad Zaman and others v. Government of Pakistan 2017 SCMR 571 and Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan and others 2017 SCMR 2010 rel.

2023 Y L R 1829

[Islamabad]

Before Mohsin Akhtar Kayani and Sardar Ejaz Ishaq Khan, JJ

AHMED ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 51 of 2021, decided on 16th June, 2022.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Prosecution case was that twenty kgs charas (gardha) was recovered from the secret cavities of the vehicle of the accused---In the present case, the star witness Police Constable, who was recovery witness and complainant/Inspector had been cross-examined at length qua the mode and manner of recovery of contraband but they remained consistent and no discrepancy had been noted---Even vehicle along with its key had been placed on record which further confirmed the prosecution case against the accused---However, complainant acknowledged that he had not verified the record of registration book of vehicle in question through Excise and Taxation Department as letter was written for verification but no reply had been received till recording of his testimony---Said aspect was not to be considered as beneficial to the accused---Appeal against conviction was dismissed, in circumstances.

(b) 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---Specific plea taken by accused---Prosecution case was that twenty kgs charas (gardha) was recovered from the secret cavities of the vehicle of the accused---Accused had taken a specific stance in his statement under S. 342, Cr.P.C., that nothing was recovered in shape of narcotics from him---Accused stated that he was a passenger in alleged car and got a lift from "P" to "R" from the driver; that Investigating Officer let off the said driver after getting bribery from him and roped him in the case; and that at the time of arrest, he also told the Investigating Officer that he had no concern with the alleged car as well as narcotics but instead of leaving him, Investigating Officer falsely implicated him in the case---Even when particular question was confronted to the accused in his statement under S. 342, Cr.P.C., qua the vehicle being driven by him, he had again reiterated the answer and further improved his version with additional claim that he also told the Investigating Officer that he got lift in the car and was heading towards "R" to see ailing friend who was admitted in hospital; and that Investigating Officer deliberately did not take any step against the said real culprit in spite of issuing summon against him---Said specific stance of the accused was to be considered with reference to Art. 122 of the Qanun-e-Shahadat, 1984, "when any fact was especially within the knowledge of any person" the burden of proving that fact was upon him---Said aspect led to an irresistible conclusion that burden of proving that particular fact which was in the knowledge of accused was upon him, who was best man to discharge that onus---However no witness had been produced by the accused, therefore, his entire defence version had lost its significance in the case---Appeal against conviction was dismissed, in circumstances.

Abdul Sattar Dero v. State 2019 PCr.LJ Note 1 and Mayzone Pak International v. State PLD 2002 Kar. 152 rel.

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

----Ss. 9(c) & 36---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr. 5 & 6---Possession of narcotics---Appreciation of evidence---Report of Government analyst---Expert opinion---Scope---Prosecution case was that twenty kgs charas (gardha) was recovered from the secret cavities of the vehicle of the accused---Record showed that Chemical Analyst Report concluded that samples contained charas (gardha)---Though Trial Court had summoned Senior Scientific Officer appeared as Court Witness and stated that he received 10 sealed parcels, conducted analysis, observed all protocols and care had been applied while the result had separately been made in the register, and report was prepared---Said witness further stated that he also produced protocol form in original which contained complete details of test---Defence heavily relied upon the non-availability of protocols mentioned in exhibited report; however R. 6 of Control of Narcotic Substances (Government analysts) Rules, 2001, was mandatory to the extent of mentioning of full protocols in the report of Government analyst while considering such aspect---Trial Court had rightly summoned the author of that report who came in witness box and gave his testimony, explained the report as a result whereof the defence plea of test conducted without protocol lost its admissibility and reliability---Appeal against conviction was dismissed, in circumstances.

State v. Imam Bakhsh 2018 SCMR 2039; Qaiser Javed Khan v. The State PLD 2020 SC 57; ANF v. Muhammad Waseem and others 2021 PCr.LJ 1520 and Murad Ameer Shah v. Samar Pervaiz 2017 PCr.LJ 1319 rel.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Non-production of official who took the complaint to Police Station---Inconsequential---Prosecution case was that twenty kgs charas (gardha) was recovered from the secret cavities of the vehicle of the accused---Defence objected that Police Constable who had taken the complaint to the Police Station for registration of FIR was not produced---However, non-production of said Police Constable was to be considered an irregularity having mitigating effect and nothing more at present stage, especially when 20 Kgs charas had been proved to be recovered from a single person i.e. accused---Appeal against conviction was dismissed, in circumstances.

Minhaj Khan v. The State 2019 SCMR 326 and Riaz Ahmad v. The State and another 2020 PCr.LJ Note 133 rel.

Ms. Qurat-ul-Ain Ayesha for Appellant.

Zulfiqar Ali Tahir, Special Prosecutor, ANF for Respondents.

2023 Y L R 2257

[Islamabad]

Before Babar Sattar, J

RASHID ZAIB---Appellant

Versus

KHAN AFZAL and another---Respondents

Criminal Appeal No. 235 of 2021, decided on 15th August, 2022.

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

----Ss. 427 & 447---Criminal Procedure Code (V of 1898), S.417(2-A)---Mischief causing damage to the amount of fifty rupees, criminal trespass---Appreciation of evidence---Appeal against acquittal---Prosecution claimed that the accused had tore down the wall separating his house from that of the property claimed by the complainant---Fact that the ownership of the property was the subject matter of civil suits pending before the Courts of competent jurisdiction in which the complainant and accused/respondent were parties was not disputed---Question of ownership of the land on which the property was constructed was therefore presently subjudice---Prosecution could not establish to the satisfaction of the Trial Court that the complainant was in possession of the property---Testimony of complainant supported the finding of the Trial Court that the complainant could not establish that he was in possession of the property---Complainant acknowledged that he was unaware of the number of utility connections available at the property and could adduce no evidence establishing his possession---Moreover, it should not be hard for a person in possession of a property to establish the same through direct and secondary evidence in the event that such person resided at such property---Investigation Officer had also admitted that he never investigated where the complainant customarily resided with his family---Site map reflected that identification mark-1 was the place where the wall was allegedly torn down by accused, but such wall was reflected as back wall of the property being claimed by the complainant and not the adjoining wall between the house of accused and the property being claimed by the complainant---Circumstances established that the impugned judgment suffered from no legal infirmity---Appeal against acquittal was accordingly dismissed.

Asfandiyar v. The State 2021 SCMR 2009 ref.

Ishtiaq Ahmed Mirza and 2 others v. Federation of Pakistan and others PLD 2019 SC 675 rel.

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

----Ss. 427 & 447---Criminal Procedure Code (V of 1898), S.417(2-A)---Mischief causing damage to the amount of fifty rupees, criminal trespass---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Video evidence---Scope---Prosecution claimed that accused tore down the wall separating his house from that of the property claimed by the complainant---In the present case, video evidence about the offence committed by accused was available---Even if there was any photographic or video evidence regarding accused tearing down a wall, such secondary evidence would not constitute an offence under S. 427 or 447, P.P.C. unless it was first established that such wall was torn down within property that belonged to someone else---In the instant case, the ownership and the possession of property being claimed by the complainant was in dispute---Question of ownership was pending adjudication before two Civil Courts and the possession of the property by the complainant had not been established by the prosecution---Without establishing through credible evidence that the property within which a wall was broken-down by accused belonged to the complainant, neither an offence under S.427, P.P.C could be made out nor that under S. 447, P. P. C.--- Circumstances established that the impugned judgment suffered from no legal infirmity---Appeal against acquittal was accordingly dismissed.

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

----S. 417---Appeal against acquittal---Scope---Acquittal carries with it double presumption of innocence.

Rashad Ul Musawar for Appellant.

Ms. Qurrat Ul Ain Ayesha for Respondent No.1.

Makhdoom Syed Fakhar Imam Ali Shah, State Counsel.

2023 Y L R 2426

[Islamabad]

Before Tariq Mehmood Jahangiri, J

ASIF FAHIM MALIK through Special Attorney---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 146 of 2020, decided on 7th February, 2023.

Criminal Procedure Code (V of 1898)---

----S. 417---Limitation Act (IX of 1908), Ss. 5 & 29---Appeal against acquittal---Limitation---Special attorney, authority of--- Condonation of delay--- Scope---Appellant/complainant was aggrieved of acquittal of accused and filed appeal through special attorney with an unexplained delay of 176 days---Validity---If there is a special provision of limitation provided under relevant law, then section 5 of Limitation Act, 1908, is not applicable for condonation of delay---Neither any application for condonation of delay was filed nor any plausible explanation was extended by appellant/complainant, with regard to filing of appeal with an inordinate delay of 176 days---Appeal in criminal case could not be filed through special attorney as well as after an inordinate delay of 176 days---Appeal was dismissed in circumstances.

Shehnaz Akhtar another v. Mst. Zeenat Tariq and others PLD 2022 Isl. 360; Muhammad Akram v. DCO Rahim Yar Khan and others 2017 SCMR 56; Board of Governors, Area Study Centre for Africa and North America, Quaid-e-Azam University Islamabad and another v. Ms. Farah Zahra PLD 2005 SC 153; Sarwar Khan v. Mir Ali and 10 others 1980 CLC 110; Sikandar Hayat v. Ata PLD 1970 SC 224; Khan v. Sajjad and 2 others 2004 SCMR 215; Quaid Johar v. Murtaza Ali and another PLD 2008 Kar. 342; Ghazanfar Ali v. M. Zahid Hussain and others PLD 2011 Lah. 179; Khalid Mehmood and 3 others v. Safdar Iqbal and another 2017 PCr.LJ 1104; Muhammad Sharif and others v. The State and others 2005 MLD 1333; Mian Muhammad Sabir v. Malik Muhammad Sadiq through Legal Heirs and others PLD 2008 SC 577; Noor Hussain v. Muhammad Salim 1985 SCMR 893; Water and Power Development Authority's case 1988 SCMR 1354; Khushi Muhammad and others v. Mst. Fazal Bibi and others PLD 2016 SC 872 and Muhammad Sarfraz Siyal v. Fazal Hussain Khan 2021 CLC 867 rel.

Syed Javed Akbar for Appellant.

Sardar Muhammad Ashfaq for Respondents.

Kashif Hussain, State Counsel.

Muhammad Asghar, S.I.

2023 Y L R 1

[Sindh (Sukkur Bench)]

Before Nadeem Akhtar and Zafar Ahmed Rajput, JJ

Agha Mir MUSTAFA KHAN DURRANI---Appellant

Versus

FEDERATION OF PAKISTAN through Secretary Election Commission of Pakistan and 4 others---Respondents

Constitution Petition No. D-645 of 2022, decided on 24th June, 2022.

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

----Ss. 35(1)(c) & 37(2)(a)---Local Government elections---Urban and rural areas---Qualifications as a member of council---Petitioner filed his nomination papers in Form-III (A) to contest local council elections for the seat of Member of Ward which was accepted by the Returning Officer---Respondent filed Election Appeal, which was allowed---Held, that the Districts in Sindh Province were categorized under S.8 of the Sindh Local Government Act, 2013 (Act) into urban area and rural area---In urban area of a District, the local areas consisted of Metropolitan Corporation, Municipal Committee, Town Committee, Union Committee and Ward ----In rural area the local areas consisted of District Council and Union Council---Person qualified to be elected or chosen as a member of the Council, if he was enrolled as a voter in electoral rolls of the concerned Council or ward---Person contesting for the District Council membership could contest the election from any Union Council of the District and the person contesting for the membership of the Town Committee or Municipal Committee might contest the election from any ward of the respective Committee provided that his proposer and seconder were registered voters of the concerned Union Council or Ward---In the case in hand, it was admitted position that the petitioner, who was enrolled as a voter in Ward No. 5 in the electoral of the Town Committee, (G.Y)/ Council, had intended to contest election as a Member of Ward No. 4 of the said Town Committee and his proposer and seconder were registered voters of the Ward No.4 of the said Town Committee---Petitioner was contesting election for a Town Committee which under S.15(ii) of the Act comprised of single member wards falling within a Town Committee and comprised of each member elected from its respective wards including reserved seats as provided under S.18(9)(b) of the Act---Petitioner was an enrolled voter in the Elections Rolls of concerned Council / Town Committee, (G/Y) and he was contesting election from a representative ward of the said Town Committee---Petitioner's proposer and seconder were registered voters of the Ward No.4 of the said Town Committee, therefore, he qualified to contest the election for the membership of Town Committee/Council---Constitutional petition was allowed and direction was given to the Returning Officer to issue revised list of contesting candidates by inserting name of the petitioner as candidate for the seat of Member of Ward and allow him symbol as per the relevant rules.

Haji Khan Bhatti v. Province of Sindh through Provincial Election Commission and others 2016 SCMR 1970 distinguished.

Qurban Ali Malano, Aamir Mustafa Kamario and Agha Ali Khan Durrani for Petitioner.

Ali Raza Pathan, Assistant Attorney General for Respondent No.1

Zeeshan Haider Qureshi, Law Officer, ECP for Respondents Nos.2 to 4.

Habibullah G. Ghouri and Chaudhry Muhammad Iqbal for Respondent No.5.

Ali Raza Balouch, A.A.G. for Respondent No.3.

2023 Y L R 12

[Sindh (Hyderabad Bench)]

Before Adnan-ul-Karim Memon, J

BALACH---Appellant

Versus

IMTIAZ-UL-HAQ

and others---Respondents

IInd Appeals Nos. S-58 and S-60 of 2019, decided on 25th September, 2020.

Specific Relief Act (I of 1877)---

----Ss. 12, 9, 39 & 54---Civil Procedure Code (V of 1908), S. 2(12)---Suit for specific performance--- Suit for cancellation, possession, mesne profits, damages and permanent injunction---Scope---Plaintiff filed a suit for specific performance alleging therein that after payment of partial amount he took over possession of the suit land, however, cause of action accrued to him when the defendant attempted to forcibly take over the possession of the suit land---Defendant filed a suit for cancellation, possession, mesne profits, damages and permanent injunction, admitted execution of agreement, however, claimed that the plaintiff occupied his entire land---Trial Court decreed the suit for specific performance and dismissed the suit filed by defendant---Appellate Court partly allowed the suit filed by defendant while holding the excessive possession of plaintiff to be illegal, directed the defendant to execute registered sale deed in favour of plaintiff and held the plaintiff liable to pay mesne profits---Held; decision of the Appellate Court was based upon sound reasoning and the survey numbers were fraudulently included by the plaintiff which were not under sale---Appeals were dismissed.

Amjad Sharif Qazi and others v. Salimullah Faridi and others PLD 2006 SC 777 and Malik Bahadur Sher Khan v. Haji Shah Alam 2017 SCMR 902 ref.

Abrar Hussain Chandio for Appellant.

Muhammad Sachal R. Awan for Respondents Nos. 1 to 5.

2023 Y L R 40

[Sindh]

Before Muhammad Shafi Siddiqui, J

Messrs UNITED BUSINESS MACHINES through Partner---Petitioner

Versus

GHULAM HUSSAIN HIDAYATULLAH and 2 others---Respondents

Constitution Petitions Nos. S-891, S-892, S-894, S-886, S-887, S-893, S-945 and S-968 of 2019, decided on 25th May, 2021.

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

----S. 15---Eviction petition---Letter of attornment---Scope---Landlord filed applications for eviction of tenants from a building on the ground of personal requirement---Rent Controller allowed the ejectment applications---Appeals filed by tenants were dismissed---Contention of tenants was that except a letter of attornment nothing was available on record to establish title of the landlord---Validity---When a letter of attornment was issued by previous owner to tenants, it did not lie in the mouth of tenants to challenge the title being transferred---Letter of attornment was a notice from a landlord/owner to a tenant that the property had been sold/transferred directing the tenant not only to pay rent but acknowledge landlord's rights in the property---Attornment occurred when a tenant acknowledged a new owner of the property as his new landlord---By all actions of the tenants, the new owner's rights in the property were acknowledged---Constitutional petitions were dismissed.

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

----S. 15---Eviction petition---Personal bona fide need of landlord---Scope---Landlord filed applications for eviction of tenants from a building on the ground of personal requirement---Rent Controller allowed the ejectment applications---Appeals filed by tenants were dismissed---Contention of tenants was that neither the names of family members nor the requirement of spouse or children was mentioned either in the eviction application or in affidavit-in-evidence---Validity---Names of the family members were immaterial for the purpose of seeking eviction on the ground of personal bona fide need as it was only the honest intention of the landlord which was material---Constitutional petitions were dismissed.

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

----S. 15---Eviction petition---Transfer of property, challenge to---Scope---Many ways were available by which a property can be transferred to a beneficiary and one of those ways is by way of gift which may be a written/registered instrument or an oral deposition---Transfer of title by way of an oral gift is recognized under the law including but not limited to Transfer of Property Act, 1882---Such rights, as being lawful, done on the basis of an oral gift cannot be taken away by tenants---Islamic Law recognizes the transfer of title by way of a gift which could be oral as one of the way of transferring the property along with all benefits.

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

----S. 15---Eviction petition---Personal bona fide need of landlord---Honesty of intention---Scope---Section 15(2)(vii) of Sindh Rented Premises Ordinance, 1979, requires demonstration of elements such as honesty of purpose and reasonableness---From the statement of landlord/owner for the purpose of eviction of a tenant on the ground of personal bona fide need only an honest intention is to be deduced and there is no other formula to adjudge good and bad faith, for the purpose of eviction on the aforesaid count.

S. M. Nooruddin v. SAGA Printers 1998 SCMR 2119 ref.

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

----S. 15---Eviction petition---Personal bona fide need of landlord---Honesty of intention---Scope---Primary requirement and condition precedent for invoking provision of S. 15(2)(vii) of Sindh Rented Premises Ordinance, 1979, claiming relief on the ground of personal bona fide need of landlord in good faith is that the landlord should be honest in his approach and sincerity of his purpose should be manifested by irreversible evidence and surrounding circumstances.

Nawadat Khan v. Mst. Surraya PLD 1993 Kar. 491 ref.

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

----S. 15---Eviction petition---Personal bona fide need---Honesty of intention---Scope---Requirement of premises in good faith is not capable of being confined to precise, identical or invariable definition nor any hard and fast rule can be propounded as to encompass all possible eventualities which could arise due to particular facts and circumstances of the case.

Muhammad Amin v. Mst. Nafeesa Khatoon PLD 1996 Kar. 340 ref.

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

----S. 15---Eviction petition---Personal bona fide need of landlord---Honesty of intention--- Scope--- Sufficiency of accommodation either for a commercial/ industrial activity or for residential purpose is to be adjudged best by the landlord himself and it may not vary only on case to case basis but also on the basis of nature of business that one intends to establish, an honest idea about future growth of the business and its prospects---Someone may have an idea of establishing humongous business set up and he may or may not be successful in achieving his object and plan but what is important, as a test, is the honesty of intention.

(h) Words and phrases---

----"Good faith"---Meaning---Good faith is an abstract term not capable of any rigid definition and ordinary dictionary meaning describes it as "honesty of intention".

Hyder Raza Arain along with Abdul Wajid Wyne, Muhammad Ali Cheepa, Muhammad Umair and Shehreyar for Petitioners.

Abdullah Munshi along with Imdad Ali Bhatti and Shajee Siddiqui for Respondent No. 1 (in all petitions).

2023 Y L R 104

[Sindh (Hyderabad Bench)]

Before Muhammad Shafi Siddiqui, J

ABDUL AZIZ---Appellant

Versus

ABDUL KAREEM and 9 others---Respondents

IInd Appeal No. S-11 of 2016, decided on 23rd May, 2022.

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

----S. 41---Specific Relief Act (I of 1877), S. 27(b)---Buying property without public notice----Respondents filed suit for cancellation against one of their brothers (respondent No. 2)---Respondents moved an application to implead appellant as party and consequently appellant was arrayed as defendant in the suit---Trial Court dismissed the suit---Respondent filed appeal before Appellant Court---Appellate Court allowed the appeal---Held, that sale deed of appellant as being enjoyed by appellant could not be set-aside automatically as the defence of the appellant was protected being buyer without notice of any dispute; it had to be proved independently through impartial evidence, failing whereof S.41 of the Transfer of Property Act, 1882 would protect the title of appellant---Section 27(b) of the Act,1877, was for enforcing performance against those who acquired title with knowledge of pervious agreement/contracts, whereas S.41 of the Act, 1882, protected title for those who acquired title without knowledge of pervious litigation----Case in hand, was a case of cancellation of sale deed so S.41 of the Act, 1882, was more appropriate for application---Buying property without public notice might be irregularity but could not always be kept at par with mala fide---Prima facie, there was no evidence that appellant had knowledge of title dispute between his predecessors---Question of limitation as applicable to suit, challenging first sale deed being registered instrument, might also be taken into consideration by the Appellant Court as it was claimed that registration of a document itself was a notice and knowledge to the respondents---Case was remanded to Appellant Court for re-hearing and for passing a speaking order specifically with reference to referred law.

Messrs Raees Amrohvi Foundation (Regd.) v. Muhammad Moosa and others 1999 CLC 296 rel.

Ayatullah Khowaja for Appellant.

Aqeel Ahmed Siddiqui for Respondents Nos.6 to 10.

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

2023 Y L R 127

[Sindh]

Before Nazar Akbar, J

AIMAN FATIMA and another---Appellants

Versus

FOZIA HASAN and 3 others---Respondents

S.M.A. No. 322 of 2021 and C.M.As. Nos. 1389 and 1390 of 2021, decided on 28th May, 2021.

Succession Act (XXXIX of 1925)---

----Ss. 278 & 372---Petition for letters of administration---Application for grant of succession certificate---Scope---Petitioner filed an application for grant of succession certificate in respect of moveable assets of her deceased husband and an application for appointment of guardian ad-litem of her minor son aged 5 years---Validity---Nazir of the Court was directed by High Court to realize the amount lying in banks and distribute the same among legal heirs---Regarding share of the minor the petitioner had requested that his share, instead of being invested in Government profit bearing scheme, be utilized in purchasing immovable property exclusively in the name of minor through his guardian under supervision of Nazir of the Court---Request of the petitioner was allowed and directions to the Nazir were issued accordingly---Applications were disposed of accordingly.

2023 Y L R 153

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Zulfiqar Ahmed Khan, JJ

GHULAM SHABBIR and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. D-82 and D-83 of 2021, decided on 26th April, 2022.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotic---Appreciation of evidence---Non-association of private witnesses at the time of arrest of accused and recovery of cars---Scope---Prosecution case was that ten kilograms of charas was recovered from the possession of the accused persons---Accused were arrested from thickly populated area and the complainant had sufficient time to call the independent persons of the locality to witness the recovery proceedings but it was not done---Only the Police Officials who were subordinates to the complainant were made as mashirs of arrest and recovery proceedings---Judicial approach had to be conscious in dealing with the cases in which entire testimony hinged upon the evidence of Police Officials alone---Provisions of S.103, Cr.P.C., were not attracted to the cases of personal search of accused in narcotic cases but where the alleged recovery was made on a road (as had happened in the present case) and the people were available there, omission to secure independent mashir, particularly, in the case of spy information could not be brushed aside lightly by the court---No explanation on record as to why the independent witness had not been associated in the recovery proceedings---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 103---"Search to be made in presence of witnesses"---Object---Prime object of S. 103, Cr.P.C., is to ensure transparency and fairness on the part of police during the course of recovery, so as to curb false implication and minimize the scope of foisting of fake recovery upon the accused.

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

----S. 9(c)---Testimony of police officials, reliance upon---Scope---Police witnesses were 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---If such qualities were missing in their evidence, no conviction could be passed on the basis of evidence of police witnesses.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Discrepancies---Scope---Prosecution case was that ten kilograms of charas was recovered from the possession of the accused persons---Recovery of charas had been affected from accused while they were coming in a car but owner of the car had not been investigated in the case---As per FIR and the evidence of complainant party, the police party was on motorcycles during the patrolling then from where they got the weighing scale and weighed the case property---In mashirnama the description of property was also not given---Failure on the part of prosecution as the Investigating Officer failed to interrogate or investigate the owner of car---Record showed that complainant party belonging to (RFF), a special force meant for rescue the operation against terrorism hence the question with regard to their competency arose and since they were on motorcycles how it was possible that one accused made his escape good within their site and they even did not chase him---Police Constable was also on patrolling duty and on checking the vehicles but his name did not appear even in the challan sheet---All the said things made the case of prosecution doubtful---As per available record, accused had no previous criminal record---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Safe custody and safe transmission of samples to the Forensic Science Laboratory not established---Benefit of doubt---Scope---Prosecution case was that ten kilograms of charas was recovered from the possession of the accused persons---According to the statement of complainant, he recovered the narcotics from the accused persons and prepared the memo of arrest and recovery and deposited the same in Malkhana---Report of Director Laboratories and Chemical Examiner revealed that the narcotics were sent to the office through SIP after the delay of two days---Tampering with the case property during that intervening period at Malkhana also could not be brushed aside---Established position was that the chain of custody or safe custody and safe transmission of narcotics begin with seizure of the narcotic by the law enforcement officer, followed by separation of the representative samples of the seized narcotic, storage of the representative samples with the law enforcement agency and then dispatch thereof to the office of the Chemical Examiner for examination and testing---Said chain of custody must be safe and secure because, the Report of Chemical Examiner enjoyed very critical and pivotal importance under the Act and the chain of custody ensured that correct representative samples reached the office of the Chemical Examiner---Any break or gap in the chain of custody i.e., in the safe custody or safe transmission of the narcotic or its representative samples made the report of the Chemical Examiner failed to justify conviction of the accused---Prosecution, therefore, was to establish that the chain of custody had remained unbroken, safe, secure and indisputable in order to be able to place reliance on the report of the Chemical Examiner---Facts of the case revealed that the chain of custody had been compromised at more than one occasion, therefore, reliance could not be placed on the report of the Chemical Examiner to support conviction of the accused---High Court observed that all such factors suggested the false implication of accused persons in the case which could not be ruled out---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.

Ikramullah and others v. The State 2015 SCMR 1002 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

(f) Criminal trial---

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

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Muzamil Khan for Appellant (in Criminal Appeal No.D-82 of 2021).

K.B. Lutuf Ali Leghari for Appellant (in Criminal Appeal No.D-83 of 2021).

Shawak Rathore, Deputy Prosecutor General for the State.

2023 Y L R 173

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

MORAN KHAN---Appellant

Versus

ALI NAWAZ and 5 others---Respondents

Criminal Acquittal Appeal No. S-40 of 2021, decided on 10th December, 2021.

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

----S. 417---Illegal Dispossession Act (XI of 2005), S. 3---Prevention of illegal possession of property, etcetera---Appeal against acquittal---Limitation---Scope---For assailing the acquittal judgment, arising out of a complaint, complainant has to file an application seeking special leave to appeal within 60 days of the judgment, which is mandatory requirement as per subsections (2) and (3) of S. 417, Cr.P.C. but the same has not been followed and an acquittal appeal has been preferred against the judgment passed by trial court in a complaint case filed under S. 3(2) of Illegal Dispossession Act, 2005---Even otherwise, if the court allows the appellant at this stage to file an application for special leave to appeal, the same would be time barred and not maintainable---Acquittal appeal was dismissed.

(b) Interpretation of statutes---

----If the words of the statute are clear and unambiguous, no more is necessary to expound those words in their natural and ordinary sense, the words themselves in such a case best declare the intentions of legislature.

Mumtaz Hussain v. Dr. Nasir Khan and others 2010 SCMR 1254 ref.

(c) Interpretation of statutes---

----Where the plain language of a statute admits of no other interpretation then the intention of the legislature conveyed through such language is to be given its full effect.

Ghulam Haider and others v. Murad through Legal Representatives and others PLD 2012 SC 501 fol.

Soomar Das R. Parmani for Appellant.

2023 Y L R 187

[Sindh]

Before Salahuddin Panhwar, J

ADEEL ZAHOOR MALIK through Attorney and another---Applicant

Versus

ABDUL SATTAR SHAIKH and 2 others---Respondents

Criminal Revision Application No. 15 and M.A. No. 688 of 2020, decided on 15th March, 2020.

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

----S. 3---Prevention of illegal possession of property---Dispossession on court's order---Effect---Petitioners assailed the dismissal of their complaint under S. 3 of the Illegal Dispossession Act, 2005---Petitioners' claim was that they were dispossessed from the subject premises by the Official Assignee---Official Assignee was directed by a competent court of law for taking re-possession of subject matter premises---Legality or competence of the Civil Court in issuing such directions could not be discussed by High Court while exercising criminal jurisdiction but what could safely be said was that such action of 're-possession' was under a lawful authority, hence, no offence within meaning of S. 3 of Illegal Dispossession Act, 2005, was made out---Possession was taken within the spirit of judgment passed in the civil suit, therefore, the complaint was rightly dismissed---Revision application was dismissed.

2019 CLC Note 7 distinguished.

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

----S. 3---Prevention of illegal possession of property---Scope---Illegal Dispossession Act, 2005, being special law, shall have application only where the ingredient(s) thereof are, prima facie, satisfied/ existing---Every case of "dispossession" shall not necessarily fall within ambit of the Act but only cases of "illegal dispossession" shall fall within ambit of the Act---Every "dispossession" is not 'illegal' because where the dispossession of one is under a legal course/action or lawful order, the same shall always qualify the term 'lawful dispossession' which (lawful act) shall not be liable for penal action---Any other view shall cause failure of law and legal course, meant to have a wrongful possession removed/ dispossessed, by resort to available lawful remedies which, even, includes the one permitted under the 'Act', which, one while raising such plea in every case of 'dispossession' must keep in mind.

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

----S. 3---Prevention of illegal possession of property---Expression "without having any lawful authority"---Scope---Prima facie, S. 3 of Illegal Dispossession Act, 2005, is aimed to prevent "illegal possession" and shall be available only against those who enter into or upon any property to dispossess, grab, control or occupy the same without having any lawful authority---Emphasis over phrase "without having any lawful authority" shall have to be given due regard---Possession/having a lawful authority for entering into or upon a property shall always be a sufficient 'defence' to hold such complaint as "incompetent".

Gulshan Bibi v. Muhammad Sadiq PLD 2016 SC 769 rel.

Sami Ehsan for Applicants/ Complainants.

Uzma Khan and Syed Jawad Hyder Rizvi for Respondent No.1.

Hussain Bux Baloch, Addl. P.G. Sindh.

Dr. Chaudhry Wasim Iqbal, Official Assignee.

2023 Y L R 207

[Sindh]

Before Mohammad Karim Khan Agha and Kausar Sultana Hussain, JJ

ARIF KAMAL and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 44 and 64 to 68 of 2010, decided on 3rd December, 2021.

Penal Code (XLV of 1860)---

----Ss. 420, 468, 471, 477-A & 34---Prevention of Corruption Act (II of 1947), S. 5(2)---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), Ss. 4 & 5---Appreciation of evidence---Jurisdiction of Banking Courts---Prosecution case was that the accused being employee of Insurance Company prepared and approved fake and bogus claims in collusion and connivance with co-accused persons, which cheques in respect of such fake and bogus forged claims were paid into bank accounts and withdrawn by bogus, beneficiaries, which caused loss to the Insurance Company---In the present case, the main accused was an employee of an insurance company namely State Life Insurance Corporation (SLIC) who allegedly defrauded the insurance company by illegally authorizing claims to individuals/ organizations which were then paid into bank accounts individuals/ organizations and the same money was withdrawn by co-accused beneficiaries of the scam---None of the accused were bankers and there was no evidence on record that any person associated with any banking company played an illegal role in the fraud for instance illegally opening bank accounts in the name of beneficiaries or knowingly allowing those bank accounts to be operated by illegal beneficiaries---Loss was caused to the insurance company and not to the banks or any of its customers---Since the complaint and the illegal acts had been carried out by persons not engaged in the business of banking prima facie the Offences in Respect of Banks (Special Courts) Ordinance, 1984 (Ordinance) did not apply to the accused persons unless the offences so charged could be found to have been committed, in respect of or in connection with the business of a bank so as to bring the offences so charged within the definition of a scheduled offence---High Court observed that record showed that there was no allegation that either the bank or any of its employees were a part of the scam who for instance illegally opened bogus accounts in favour of illegal beneficiaries---No banker had been sent up to stand trial for committing any illegality in respect of the case and the bank officials appeared to have acted in a bona fide manner---No loss had been caused to the bank and as such based on the particular facts and circumstances of the case, it could not see how the offences allegedly committed fell within the term in respect of or in connection with the business of a bank---Offences were clearly related to the business of an insurance company and its employees who allegedly committed the illegality through which the banks were an unwitting conduit performing there functions as they were obliged to do under the law and there own SOP's---Under said circumstances, the Special Court under the Ordinance had no jurisdiction to hear and decide such cases---Appeals were allowed and accused were acquitted by setting aside the convictions and sentences recorded by the Trial Court.

Sikandar Ali v. The State 1989 PCr.LJ 613; Mushtaq Hussan Shah v. The State 1986 Law Notes (Lahore) 91; Shafique Anwar Qureshi v. The State PLD 1985 Jour. 66; The State v. Ghulam Rabbani and others 1986 PCr.LJ 2096; A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353; Karachi College Teachers Co-operative Housing Society v. Judicial Magistrate XVI East Karachi and another 2011 YLR 1825; National Bank of Pakistan v. Nazir Ahmed alias Kashif Nadeem 1995 SCMR 669; Allied Bank Limited through Authroised Officer v. Sikandar Ali and 4 others PLD 2013 Sindh 374; Amjid Ali and another v. The State and another 2013 YLR 548; A. Habib Ahmed v. M.K.G. Scott Christian PLD 1992 SC 353; Allied Bank Limited v. Sikandar Ali and 5 others 2013 CLD 1339; Al Arfan Electronics Trading LLC v. The State and 7 others 2012 YLR 353; Nasir Ali Jatt v. The State 2011 YLR 255; Ch. Muhammad Asif v. The State 2004 PCr.LJ 464; Sikandar Ali v. The State 1989 PCr.LJ 613; Mushtaq Hussain Shah v. The State 1986 PCr.LJ 567; Ghulam Mustafa v. Presiding Officer, Special Court (Offences Against Banks), Rawalpindi 2003 MLD 841 and Karachi College Teachers Co-operative Housing Society v. Judicial Magistrate XVI East Karachi and another 2011 YLR 1825 ref.

Shafique Anwar Quershi v. State PLD 1985 Jour. 66; Mustaq Hussain Shah v. The State 1986 PCr.LJ 567; Sikander Ali v. The State 1989 PCr.LJ 613 and A. Habib Ahmed v. M.K.G. Scott Christian PLD 1992 SC 353 rel.

Ms. Humaira Nadeem Rana for Appellant (in Criminal Appeal No. 44 of 2010).

Ijaz Ahmed along with Waqar Ahmed Amicus-Curiae appointed by the Court (in Criminal Appeal No. 44 of 2010).

Mukesh Kumar Khatri for Respondent (in Criminal Appeal No. 44 of 2010).

Gul Faraz Khattak, Assistant Attorney General for the State (in Criminal Appeal No. 44 of 2010).

Mrs. Rana Khan for Appellant (in Criminal Appeals Nos.64 to 68 of 2010).

Ijaz Ahmed along with Waqar Ahmed, Amicus-Curiae appointed by the Court (in Criminal Appeals Nos.64 to 68 of 2010).

Mukesh Kumar Khatri for Respondent (in Criminal Appeals Nos.64 to 68 of 2010).

Gul Faraz Khattak, Assistant Attorney General for the State (in Criminal Appeals Nos.64 to 68 of 2010).

2023 Y L R 242

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Zulfiqar Ahmed Khan, JJ

AYAZ HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-47 of 2021, decided on 7th April, 2022.

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

----S. 9(c)---Possession of Narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that 4000 grams charas was recovered from the plastic bag of the accused---Record showed that on spy information the accused was arrested from a populated area and the complainant had sufficient time either to take any private mashir from the place where he received spy information or at the place where he arrested the accused and recovered charas from his possession to witness the recovery proceedings but it was not done by him for the reasons best known to him and only the police officials who were subordinates to him were made as mashirs of arrest and recovery proceedings---No customer of purchasing the alleged charas was found at the place of incident---If police could have waited tactfully, some customers might have appeared on the scene, that would have brought some acceptability to police story---Circumstances established that prosecution had failed to prove its case against the accused---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

(b) 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---Search to be made in presence of witnesses---Scope---Prosecution case was that 4000 grams charas was recovered from the plastic bag of the accused---Provisions of S.103, Cr.P.C were not attracted to the cases of personal search of accused in narcotic cases but where the alleged recovery was made on a road (as had happened in the present case) and the people were available there, omission to secure independent mashirs, particularly, in the case of spy information could not be brushed aside lightly by the court---Police, in such circumstances was, to take video grabs of such occurrences or wear body-cameras---Prime object of S.103, Cr.P.C. was to ensure transparency and fairness on the part of police during course of recovery, curb false implication and minimize the scope of foisting of fake recovery upon accused---No explanation was on record as to why the independent witness had not been associated in the recovery proceedings though the complainant party had much prior information about the presence of accused along with charas---Incident was a day time occurrence and the possibility of persons at the place of incident could not be ruled out---Circumstances established that prosecution had failed to prove its case against the accused---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

(c) Criminal trial---

----Witness--- Police Officials as witnesses--- Scope--- No doubt police witnesses were 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---If such qualities were missing in their evidence, no conviction could be passed on the basis of evidence of police witnesses.

(d) 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---Contradictions in the statements of witnesses---Scope---Prosecution case was that 4000 grams charas was recovered from the plastic bag of the accused---Material contradictions existed in the evidence of the prosecution case such as mashir in his cross-examination had deposed that private vehicle was of black colour 2-D corolla car, however, in his same statement said witness deposed that private car was arranged from friend of complainant and it was white colour car---Investigating Officer of the case had admitted in his cross-examination that his signature on mashirnama of place of incident was different from his signature on statement under S.161, Cr.P.C.---Investigating Officer had not recorded entry in daily diary about his departure from Police Station for inspection of place of incident---Complainant had also contradicted mashir with regard to colour of the private car by saying that it was coure car---Registration number, colour and make of private vehicle was not mentioned in daily entry and FIR and it was grey colour car---Said witness had also admitted by saying that he had not shown place of incident to Investigating Officer---Material contradictions in the evidence of complainant and mashir of arrest and recovery on the material aspects of the case existed---Circumstances established that prosecution had failed to prove its case against the accused---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

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

----S. 9(c)---Possession of narcotics---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---Prosecution case was that 4000 grams charas was recovered from the plastic bag of the accused---Statement of complainant, revealed that he recovered the narcotic from accused and prepared the memo of arrest and recovery and deposited the same in Malkhana---Report of Chemical Examiner revealed that the alleged charas was received by hand in the office through Police Constable after the delay of two days and safe custody of the chars at Malkhana and its safe transit during that intervening period had not proved at trial---Admittedly, the chain of custody or safe custody and safe transmission of narcotics begin with seizure of the narcotic by the law enforcement officer, followed by separation of the representative samples of the seized narcotic, storage of the representative samples with the law enforcement agency and then dispatched thereof to the office of the Chemical Examiner for examination and testing---Said chain of custody must be safe and secure---Such was because the Report of Chemical Examiner enjoyed very critical and pivotal importance under Act, 1997and the chain of custody ensured that correct representative samples reached the office of the Chemical Examiner---Any break or gap in the chain of custody i.e., in the safe custody or safe transmission of the narcotic or its representative samples made the report of the Chemical Examiner failed to justify conviction of the accused---Prosecution, therefore, was to establish that the chain of custody had remained unbroken, safe, secure and indisputable in order to be able to place reliance on the report of the Chemical Examiner---Facts of revealed that the chain of custody had been compromised at more than one occasion, therefore, reliance could not be placed on the report of the Chemical Examiner to support conviction of the accused---All such factors suggested the false implication of accused in the case which could not be ruled out---Circumstances established that prosecution had failed to prove its case against the accused---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Ikramullah and others v. The State 2015 SCMR 1002 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

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

----S.9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Delay of two days in sending the sample for analysis---Effect---Prosecution case was that 4000 grams charas was recovered from the plastic bag of the accused---Record showed that the charas was recovered from possession of accused and was kept in Malkhana and the same was sent to Chemical Examiner after the delay of two days, hence it had not been proved that it was a safe transit case---Circumstances established that prosecution had failed to prove its case against the accused---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

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

(g) Criminal trial---

----Benefit of doubt--- Principle--- Not necessary that there should many circumstances creating doubts---If there was a single circumstance, which creates 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.

Tariq Parvez v. The State 1995 SCMR 1345 rel.

Rafique Ahmed Leghari for Appellant.

Shahzado Saleem Nahiyoon, Deputy Prosecutor General for Respondent.

2023 Y L R 261

[Sindh (Sukkur Bench)]

Before Muhammad Junaid Ghaffar, J KISHANCHAND and others---Applicants

Versus

Syed MOHAMMAD ZULFIQAR NAQVI and 3 others---Respondents

Civil Revision No. S-71 of 2001, decided on 12th January, 2022.

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

----Ss. 42 & 8---Limitation Act (IX of 1908), Art. 120---Suit for declaration and possession---Limitation---Scope---Plaintiffs filed a suit for declaration, possession and mesne profits with a prayer that they were legal heirs of the owner of property and the defendant being in distress after his migration had obtained the property on rent but had subsequently got the suit property transferred in his name---Trial Court dismissed the suit whereas Appellate Court decreed the suit---Validity---Plaintiffs never had any title document in the name of their predecessor in interest---If the predecessor of plaintiffs had let out the property to the defendant then the proceedings were to be initiated under the law relating to landlord-tenant so as to seek ejectment of defendant---Suit was time barred as the pleadings suggested that the cause of action accrued in 1967 when the property was purportedly purchased by the predecessor of plaintiffs, whereas the suit was filed in 1992---Revision application was allowed, judgment passed by Appellate Court was set aside and that of Trial Court was maintained.

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

----S. 42---Transfer of Property Act (IV of 1882), S. 54---Suit for declaration---Contract for sale---Scope---No title or ownership can be claimed merely on the basis of an agreement, even if the possession has been handed over.

Manoj Kumar Tejwani for Applicants.

Ghulam Shabbir Shar for Respondents

2023 Y L R 270

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

MOULA BUX alias MOLU---Appellant

Versus

The STATE---Respondent

Special Criminal A.T. Appeal No. 208 of 2020, decided on 5th April, 2022.

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

----Ss. 302, 324, 353, 392, 397 & 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, robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Ocular account--- Scope---Prosecution case was that the accused persons snatched mobile phones and cash from the complainant and when police chased them, they made firing upon the police party, due to the firing one Police Constable, one passerby and a child got injured and Police Constable succumbed to injuries---Complainant as eye-witness registered the FIR promptly against unknown persons who had robbed him and who then alerted the police to the robbery who entered into an encounter with the robbers whilst they were escaping on their motor bike---Complainant gave his evidence to similar effect and noted in his FIR that the robbers were Baloch and were young and he could recognize them if he had seen them again---Complainant did not give any hulia of the robbers who also fired upon the police in his FIR---Admittedly, it was a day time incident and complainant ought to have got a good look at the robbers however, the robbers were not apprehended until six years after the incident---When the robbers which included the accused appeared before an identification parade held by the Judicial Magistrate the eye-witness was not able to identify the accused as being one of the robbers due to lapse of over eight years since the incident---Complainant was declared hostile witness and cross-examined by the prosecution whereby he denied that he refused to identify the accused because he was afraid---Said eye-witness was not able to correctly identify the robbers including the accused who also had an encounter with the police and caused the death of the deceased by firearm and as such his evidence was of no relevance in determining whether the accused was one of the persons who committed the offence so charged---Other eye-witness was a Police Officer who was present with the deceased at the time of the incident---Said witness gave no hulia of the accused and did not even say in either his statement under S. 161, Cr.P.C. or evidence that he could recognize the dacoits if he had seen them again---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

Javed Khan alias Bacha and another v. The State and another 2017 SCMR 524 and Mian Sohail Ahmed and others v. The State and others 2019 SCMR 956 ref.

Javed Khan v. State 2017 SCMR 524 rel.

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

----Ss. 302, 324, 353, 392, 397 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanune-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, robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Delay of about six years in conducting the test identification parade---Scope---Prosecution case was that the accused persons snatched mobile phones and cash from the complainant and when police chased them, they made firing upon the police party, due to the firing one Police Constable, one passer by and a child got injured and Police Constable succumbed to injuries---Identification parade where the eye-witness picked out the accused as being one of the robbers who shot the deceased by firearm was held six years after the incident---Due to that long time lapse, the fact that the accused would have only got a fleeting glimpse of an unknown accused and his failure to give any hulia of the accused, thus reliance could not be placed on that eye-witness as having correctly identified the accused as being one of the dacoits who fired on the deceased especially as it was put to him in cross-examination that he was shown the accused before the identification parade who had been in police lock up---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 324, 353, 392, 397 & 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, robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---No-recovery of weapon of offence---Effect---Prosecution case was that the accused persons snatched mobile phones and cash from the complainant and when police chased them, they made firing upon the police party, due to the firing one Police Constable, one passerby and a child got injured and Police Constable succumbed to injuries---No weapon was recovered from the accused and as such the empties recovered at the scene and positive Forensic Science Laboratorywere of no assistance to the prosecution case in linking the accused to the crime---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 324, 353, 392, 397 & 34---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, assault or criminal force to deter public servant from discharge of his duty, robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Withholding material evidence---Scope---Prosecution case was that the accused persons snatched mobile phones and cash from the complainant and when police chased them, they made firing upon the police party, due to the firing one Police Constable, one passerby and a child got injured and Police Constable succumbed to injuries---Record showed that the prosecution made no effort to bring on record the evidence of the independent injured eye-witness who would have been one of the best eye-witnesses or another person who was also present at the time of the robbery and would have got a good look at the robbers---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 324, 353, 392, 397 & 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, robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Confession before the police---Scope---Prosecution case was that the accused persons snatched mobile phones and cash from the complainant and when police chased them, they made firing upon the police party, due to the firing one Police Constable, one passerby and a child got injured and Police Constable succumbed to injuries---Does not appeal to logic, common sense and reason that a person in lock up for offences under the Sindh Arms Act 2013 and Explosive Substances Act 1908 would confess before the police to an offence six years after the incident which carried the death penalty when prior to such confession there was no evidence against him especially when the offences for which he was arrested only carried a maximum sentence of 14 years under the Anti-Terrorism Act---Confession before the police was inadmissible in evidence and further doubt was casted on such confession when the accused was not produced before a Judicial Magistrate to record his confession despite being produced before a Judicial Magistrate for an identification parade---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 324, 353, 392, 397 & 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, robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Non-production of departure entry---Effect---Prosecution case was that the accused persons snatched mobile phones and cash from the complainant and when police chased them, they made firing upon the police party, due to the firing one Police Constable, one passerby and a child got injured and Police Constable succumbed to injuries---No departure entry was ever produced for the deceased who was in plain clothes as opposed to police uniform and eye-witness who was also a police man and no evidence was produced that they were on duty or had been issued arms and ammunition---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

(g) Criminal trial---

----Benefit of doubt---Principle---Prosecution must prove its case against the accused beyond a reasonable doubt and that the benefit of doubt must go to the accused by way of right as opposed to concession.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Ms. Humaira Memon for Appellant.

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

2023 Y L R 293

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Rashida Asad, JJ

MUHAMMAD RAMZAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-361 of 2012 and Confirmation Case No. D-15 of 2012, decided on 20th August, 2020.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd---Appreciation of evidence---Examination of accused---Scope---Accused was charged for committing murder of the deceased by firing---Statement of accused recorded under S. 342, Cr.P.C., it transpired that complainant and eye-witnesses deposed that deceased sustained fire arm injuries, post mortem examination was conducted, in which injuries by means of fire arm were certified and post mortem was produced before the Trial Court, but question regarding that piece of evidence was not put to accused for his explanation---Revolver recovered on the pointation of the accused was sent to the Ballistic Expert and report was positive, it was laid in the R & Ps, but it was not produced in evidence at trial, but said incriminating piece of evidence was not put to accused for his explanation in his statement under S. 342, Cr.P.C.---Trial Court had relied upon the said pieces of evidence for recording conviction against the accused---Held, Trial Court had taken the matter lightly and awarded death sentence to the accused without putting all the incriminating pieces of evidence at the time of recording of statement under S.342, Cr.P.C.---Some other incriminating pieces of evidence with regard to the medical evidence, which were also not put to the accused at the time of recording 342 Cr.P.C. statement for his explanation---Accused, therefore, was prejudiced in his trial, therefore, a miscarriage of justice had occurred in the case---Procedure adopted by Trial Court was an illegal procedure that could not be cured under section 537, Cr.P.C., thus, it had vitiated the trial---Impugned judgment was liable to be set aside---Appeal was allowed by setting aside impugned judgment and case was remanded to the trial court for re-trial after recording statement of the accused under S. 342, Cr.P.C., after putting all incriminating pieces of evidence to the accused.

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

----S. 342 ---Examination of accused---Scope---All incriminating pieces of evidence available on record are required to be put to the accused as required under S.342, Cr.P.C., for the purpose of enabling the accused to explain any circumstances appearing in evidence against him---If any piece of evidence was not put to the accused in his statement under S. 342, Cr.P.C., then the same could not be used against him for his conviction.

Habibullah alias Bhutto and 3 others v. The State PLD 2007 Kar. 68 and Muhammad Nawaz and others v. The State and others 2016 SCMR 267 rel.

Muhammad Jamil Ahmed for Appellant.

Aijaz Shaikh for the Complainant.

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

2023 Y L R 321

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Zulfiqar Ahmad Khan, JJ

LAL BUX alias LAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-07 of 2022, decided on 20th April, 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---Benefit of doubt---Non-association of private persons---Scope---Allegedly, 1100 grams of charas was recovered from the possession of accused---Record showed that accused was arrested from main street but no independent persons of the locality had been associated in recovery proceedings---Only the Police Officials who were subordinates to the complainant were made as mashirs of arrest and recovery proceedings---Provisions of S. 103, Cr.P.C., were not attracted to the cases of personal search of accused in narcotic cases but where the alleged recovery was made on a street as had happened in the present case and the people were available there, omission to secure independent mashirs, particularly, in police case could not be brushed aside lightly by the court---No explanation on record why no any independent person from the vicinity had been joined to witness the recovery proceedings---Circumstances established that the prosecution had failed to prove the guilt 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.

Ikramullah and others v. The State 2015 SCMR 1002 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

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

----S. 103---Search to be made in presence of witnesses---Object---Prime object of S. 103, Cr.P.C., was to ensure transparency and fairness on the part of police during the course of recovery, curb false implications and minimize the scope of foisting fake recovery upon accused.

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

----S. 9(c)--- Testimony of Police Officials, reliance upon---Scope---No doubt, police witnesses were 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---If such qualities were missing in their evidence then no conviction could be passed on the basis of evidence of police witnesses---In the present case, number of contradictions in between the evidence of prosecution witnesses were available which could not be easily brushed aside---Conduct of the police showed that investigation had been carried out in a casual and stereotype manner without making an effort to discover the actual facts/truth---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Chemical analysis ---Delay of nine days in sending samples of contraband for analysis---Effect---Allegedly, 1100 grams of charas was recovered from the possession of accused---According to the statement of complainant, he recovered the narcotic from accused and prepared the memo. of arrest and recovery and deposited the same in Malkhana---Report of Director Laboratories and Chemical Examiner revealed that the charas was received by hand in the office through HC after the delay of nine days but evidence on the record was silent that where the same remained for nine days---Evidence regarding safe transmission of alleged recovered narcotics to the laboratory for chemical analysis was also missing---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court.

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

----S. 9(c)---Possession and transportation of charas---Appreciation of evidence---Safe custody of samples and their transmission to the Chemical Examiner---Significance---If safe custody of narcotics and its transmission through safe hands was not established on the record, same could not be used against the accused---Chain of custody or safe custody and safe transmission of narcotics begin with seizure of the narcotic by the Law Enforcement Officer, followed by separation of the representative samples of the seized narcotic, storage of the representative samples with the law enforcement agency and then dispatch thereof to the office of the Chemical Examiner for examination and testing---Said chain of custody must be safe and secure---Such was because the Report of Chemical Examiner enjoyed very critical and pivotal importance under the Act and the chain of custody ensured that correct representative samples reached the office of the Chemical Examiner---Any break or gap in the chain of custody i.e., in the safe custody or safe transmission of the narcotic or its representative samples made the report of the Chemical Examiner failed to justify conviction of the accused---Prosecution, therefore, was to establish that the chain of custody had remained unbroken, safe, secure and indisputable in order to be able to place reliance on the report of the Chemical Examiner---Facts of the present case revealed that the chain of custody had been compromised at more than one occasion, therefore, reliance could not be placed on the report of the Chemical Examiner to support conviction of the accused---All such factors suggested the false implication of accused in this case which could not be ruled out---Record showed 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---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court.

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

(f) Criminal trial---

----Benefit of doubt---Principle---If there is a single circumstance, which creating 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.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Gul Hassan Panhwar for Appellant.

Shahzado Saleem Nahiyoon, Additional Prosecutor General, Sindh for the State.

2023 Y L R 359

[Sindh (Sukkur Bench)]

Before Aftab Ahmed Gorar, J

HABIBULLAH and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-147 of 2019 and M. As. Nos. 7604, 7605, 7606 of 2020, decided on 22nd March, 2021.

Criminal Procedure Code (V of 1898)---

----S.345---Penal Code (XLV of 1860), Ss. 302(b), 337-H(ii), 504, 147, 148 & 149---Qatl-i-amd, rash and negligent act, intentional insult with intent to invoke breach of the peace, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Compounding of offence---Compromise between the parties---Scope---Compromise arrived at between the accused persons and legal-heirs of deceased had been made voluntarily---Major legal-heirs of the deceased appeared and reiterated the contents of listed applications and the affidavits filed by them and stated that they have waived off their right of Qisas and Diyat so also did not claim any compensation---So far share of minor heirs was concerned, there were five minor legal-heirs and the Accountant of the Court had furnished report showing entire share amount of the minors out of which the accused persons had given agricultural land measuring (00-20) Ghuntas by way of registered sale deed and such Khata had also been mutated in the names of the said minors in the record-of-rights---Pursuant to orders of the Court of the Mukhtiarkar (Revenue) had also submitted the report showing the

value of the said area of the landed property, however, for remaining Diyat amount, accused persons gave undertaking to deposit the same with the Accountant of the court---Compromise application was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

Shabbir Ali Bozdar for Appellants

Khalil Ahmed Metlo, D.P.G. for the State.

2023 Y L R 395

[Sindh (Larkana Bench)]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

LAL MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-32 and Criminal Confirmation Case No. D-03 of 2018, decided on 17th March, 2021.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Accused was charged for committing murder of his wife and daughter by plying dagger on the suspicion that she had illicit relation with someone else and the daughter was born out of said relation---Prosecution had produced three eye-witnesses who had seen the accused while committing the murders of both the deceased---All the said eye-witnesses during their cross-examination were on one line on all aspects which included their arrival at the house of accused, stayed on the request of accused, taking meals in the house of accused and they ate the dinner in the house of accused---All the said things they disclosed supported each other---No contradiction was pointed out in their evidence by defence---No suggestion was put as to why and on what basis/enmity the accused was implicated---Accused and the eye-witnesses were closely related to each other and they had seen the accused while committing the murders of his wife and the daughter from a close distance of about 8 to 10 feet---No question of mistaken identity especially, as a light bulb was on by which the eye-witnesses could see the accused and the eye-witnesses knew the accused---Incident took place in the room of the accused and during the cross examination it was even not suggested that the accused was not present at his house at the time of incident---Defence of the accused that the murders were committed by some unknown accused persons had no independent support---Oral/direct evidence available against the accused was reliable, trustworthy and confidence inspiring---All the three eye-witnesses supported the prosecution case and their testimony was unchallenged---No enmity or ill-will was suggested against any of the witnesses---Accused had not even been able to prove that at the relevant time (time of the incident), he was not available in his house---Accused did not even come forward as a witness despite his wife and his daughter being brutally murdered in his own house and instead remained mum---Even after his arrest the accused did not make any allegation of being falsely implicated in the case---Appeal against conviction was dismissed accordingly.

Talib Hussain and others v. The State 1995 SCMR 1776; Zakir Khan and others v. The State 1995 SCMR 1793 and Muhammad Ishaque v. The State 2018 YLR 786 ref.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Weapon of offence recovered from the possession of the accused--- Reliance--- Scope--- Accused was charged for committing murder of his wife and daughter by plying the dagger on the basis of suspicion that deceased had illicit relation with someone and the daughter was born out of said relation---In the present case, mashir of recovery stated that police arrested the accused at 5.00 p.m. and on body search one dagger was recovered and the mashirnama was prepared by police in his presence and co-mashir---Said witness was cross- examined at length but nothing favourable to the accused was brought on record by the defence---No enmity or ill-will was suggested against said witness for falsely implicating the accused in the offence, which was a heinous offence providing capital punishment and in the said incident two innocent persons including a baby girl lost their lives---Appeal was dismissed accordingly.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd---Appreciation of evidence---Defence plea---Scope---Accused was charged for committing murder of his wife and daughter by plying the dagger on the basis of suspicion that deceased had illicit relation with someone and the daughter was born out of said relation---Accused at the time of recording his statement under S. 342, Cr.P.C took the simple plea that allegation against him was false and he was not available at the time of incident and the dagger was foisted against him---Said defence at the belated stage was not helpful to the accused as during the evidence of all the eye-witnesses he had not taken the same defence nor he produced any defence evidence in that respect---Appeal was dismissed accordingly.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Related witnesses---Scope---Accused was charged for committing murder of his wife and daughter by plying the dagger on the basis of suspicion that deceased had illicit relation with someone and the daughter was born out of said relation---Admittedly, witnesses appeared to be interested as they all related to each other in one way or the other---No evidence had come on record that there was any open enmity or animus between the prosecution witnesses and the accused---All the three eye-witnesses were also relatives of the accused as such their evidence seemed to be reliable and corroborated by other independent evidence---Appeal against conviction was dismissed accordingly.

Khizar Hayat v. The State 2011 SCMR 429 and Faisal Mehmood v. The State 2010 SCMR 1025 rel.

Athar Abbas Solangi for Appellant.

Ali Anwar Kandhro, Additional Prosecutor General for the State.

2023 Y L R 414

[Sindh (Hyderabad Bench)]

Before Muhammad Shafi Siddiqui, J

ABDUL MALIK---Appellant

Versus

PROVINCE OF SINDH through Secretary (Revenue) and 5 others---Respondents

IInd Appeals Nos. 44 and 45 of 2021, decided on 3rd June, 2022.

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

----S.12---Suit for specific performance---Substantial consideration, paid---Second appeal--- Scope--- Appellant filed suit for specific performance against respondents---Respondents also filed suit for possession and recovery of rent and mesne profit---Trial Court dismissed suit of appellant and partly decreed the suit of respondents---Both parties filed appeal before Appellant Court---Respondent's appeal was allowed and appellant's appeal was dismissed by Appellant Court---Held, that there was no impartial evidence of any witness of the appellant, sale consideration was not proved and substantial portion of sale consideration was claimed to have been paid in cash, whereas, only meager amount was shown to have been deposited in the accounts of respondents, which in fact was deposited towards part of rent outstanding---In the case in hand, the evidence was unsatisfactory as found by the two Courts below and not convincing---Appeal filed by appellant was allowed setting aside the judgment of appellate court to the extent of mesne profit and possession of rented premises, and appeal filed by respondents was dismissed. (b) Sindh Rented Premises Ordinance (XVII of 1979)---

----Ss. 14 & 15---Suit for possession and mesne profit---Grounds for eviction---Jurisdiction---Law did not restrict landlord to file any suit, but for the eviction of tenant from the premises the relevant law was the Sindh Rented Premises Ordinance, 1979---Jurisdiction for rent proceedings vested with the Rent Controller---Tenancy proceedings under any other law were not maintainable---Eviction of tenant from premises under rent law was possible only on grounds available under Ss. 14 & 15 of the Ordinance, such as default, personal requirement, re-letting, misuse and reconstruction---Pleadings and evidence in the present case showed that ground and first floor were admittedly rented out by respondent to appellant and hence eviction of such portions could only be possible through eviction proceedings under the Ordinance---Appellant was in occupation as tenant of the ground and first floor, respondents were entitled for a fair rent and might recover outstanding rent and not mesne profit---Appeal filed by appellant was allowed setting aside the judgment of appellate court to the extent of possession of rented premises and mesne profit and appeal filed by respondents was dismissed.

Aqeel Ahmed Siddiqui for Appellant

Irfan Ahmed Qureshi for Respondents 4 and 5.

2023 Y L R 427

[Sindh (Hyderabad Bench)]

Before Irshad Ali Shah, J

SIKANDAR ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-209 of 2018, decided on 10th February, 2021.

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--- Night-time occurrence---Contradictory statements---Acquittal of co-accused persons---Scope---Prosecution case was that the deceased together with his friends was taken by police party at the instance of a person with whom the deceased was having a dispute over a plot---Deceased was shifted from one police station to another and from there he was shifted to the place of incident where he was killed---Incident as per complainant was witnessed by him in the light of motorcycles---Prosecution witnesses had supported the complainant so far as identity of the accused and others under the light of motorcycles was concerned---Identity of the culprits involved in the incident under the light of motorcycles with specific role even otherwise appeared to be a weak piece of evidence---Complainant had admitted that there were conflicting statements in his application under Ss.22-A & 22-B, Cr.P.C. and his FIR with regard to the weapon used by the accused---One of the friends of deceased had admitted that he had not seen the accused committing murder of the deceased while the other was not examined by the prosecution for no obvious reason---Presumption which could be drawn for his non-examination would be that he was not going to support the case of prosecution---Seven other persons were acquitted on the same evidence and their acquittal had attained finality---Prosecution had not been able to prove its case against the accused beyond shadow of doubt and to such benefit he was entitled---Impugned judgment was set aside and the accused was acquitted of the charge---Criminal appeal was disposed of accordingly.

Mst. Yasmeen v. Javed and another 2020 SCMR 505; Eissan and others v. The State 2008 PCr.LJ 1197; Gul Zaman v. The State and another SBLR 2016 Sindh 1291; Ghulam Murtaza v. The State 2010 PCr.LJ 461 and Abdul Rahim v. Ali Bux and others SBLR 2016 Sindh 1426 ref.

Mehmood Ahmed and others v. The State and another 1995 SCMR 127; Sardar Bibi and others v. Munir Ahmed and others 2017 SCMR 344 and Muhammad Masha v. The State 2018 SCMR 772 rel.

Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872; Zulfiqar Ahmed and another v. The State 2011 SCMR 492 and Shah Faisal v. The State 2016 YLR 721 distinguished.

Badal Gahoti for Appellant.

Javed Ali Buriro for the Complainant.

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

2023 Y L R 448

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ

HANEEF---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-77 of 2017, decided on 14th May, 2018.

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

----S. 9(c)---Possession of ten kgs of charas--- Appreciation of evidence---Benefit of doubt---Prosecution case was that ten kilograms of charas was recovered from the possession of the accused---Record showed that on spy information, accused was arrested at Railway Crossing---No private person at Railway Crossing was associated as a mashir in the case to witness recovery proceedings---Complainant had deposed that he had prepared the mashirnama of arrest and recovery on torch light---Said light was not produced before the Trial Court---Case property was kept in Malkhana, till it was dispatched to the chemical laboratory---Neither the Head Mohrer of Malkhana hadbeen examined nor such entry had been produced before the Trial Court to establish the safe custody of charas at Malkhana---Police Constable who had transmitted charas to the Chemical Examiner had also not been examined by the prosecution---Non-examination of such material witness would cause dent to the prosecution case---Said circumstances had created a reasonable doubt in the prosecution case---Appeal against conviction was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court.

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

----S. 9(c)--- Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5---Possession of ten kgs of Charas---Appreciation of evidence---Delay in sending the sample for analysis---Effect---Prosecution case was that ten kilograms Charas was recovered from the possession of the accused---Evidence of prosecution witnesses showed that Charas was recovered from the possession of accused on 17.10.2016 but it was received by the office of Chemical Examiner on 02.11.2016---Inordinate delay in dispatch had created serious doubt regarding the genuineness of such report---Report of Chemical Examiner was deficient report as it did not contain any details whatsoever of any protocol adopted at the time of chemical analysis of the recovered substance---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.

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

(c) Criminal trial---

----Benefit of doubt---Principle---Not necessary that there must be multiple circumstances creating doubt in the case of prosecution---If there was a single circumstance which created a reasonable doubt in the prudent mind about the guilt of the accused, then accused would be entitled to benefit of doubt and not as a matter of grace and concession but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Tilok Chand for Appellant.

Syed Meeral Shah, A.P.G. for the State.

2023 Y L R 461

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Rashida Asad, JJ

SAJJAN---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-172 and Confirmation Case No. 48 of 2019, decided on 8th September, 2021.

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

----Ss. 302(b), 324, 311 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd and common intention---Appreciation of evidence---Accused was charged for committing murder of his wife/daughter of the complainant and also causing injuries to his paramour---Motive behind the occurrence was that the injured had developed illicit relations with the deceased--- Record showed that occurrence had taken place in the house of accused---Accused in his statement recorded under S.342, Cr.P.C., could not explain the murder of his wife, mere his denial was not sufficient---Evidence of injured, father of deceased, brother of injured was confidence inspiring---Statements of the said witnesses qua the date, time and manner of the occurrence were identical---Although said witnesses were cross-examined at length but nothing detrimental to the salient features of the prosecution was detected---Confession of the accused appeared to be true and voluntary---Delay of six days in recording the confessional statement of accused would not be sufficient to disbelieve it for the reasons that there was no evidence that it was obtained under duress or coercion---Judicial Magistrate recorded the confessional statement of accused after observing all the legal formalities and provided sufficient time to accused for reflection---Circumstances established that the prosecution had proved its case against the accused, however, due to mitigating circumstances, appeal was partly allowed and death sentence was reduced to imprisonment for life.

Ghulam Mohy-ud-Din alias Haji Babu and others v. The State 2014 SCMR 1034 and Mst. Nazia Anwar v. The State and others 2018 SCMR 911 ref.

(b) Criminal trial---

----Judicial confession--- Retraction---Scope---Retracted confession could legally be taken into consideration against the maker---If the confession was found true and voluntary then there was no need at all to look for further corroboration.

Muslim Shah v. The State PLD 2005 SC 168 rel.

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

----Ss. 302(b), 324, 311 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Motive was not proved---Scope---Accused was charged for committing murder of his wife/daughter of the complainant and also causing injuries to her paramour---Motive behind the occurrence was that the injured had developed illicit relations with the deceased---Admittedly, both the parties were related to each other---Prosecution case was that accused had seen the injured while sitting in his house---Deceased and injured were not found in objectionable condition---Prosecution witness had deposed that injured was working at Bricks-Kiln, on the day of incident he was brought to home by accused and meal was served---Said fact clearly showed that relations between accused and injured were cordial and were on visiting terms---Motive as alleged by the prosecution in FIR had not been established at trial---Appeal was partly allowed and death sentence was reduced to imprisonment for life, in circumstances.

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

----Ss. 302(b), 324, 311 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Sentence, reduction in---Mitigating circumstance--- Scope---Accused was charged for committing murder of his wife/daughter of the complainant and also causing injuries to her paramour---Record showed that the Investigation Officer had failed to interrogate/investigate about the motive as set up in the FIR---Not a single witness had seen the accused while committing the murder of his wife---Accused in his confessional statement had also not stated that he had seen injured with his wife in physical contact with each other---Injured had deposed that at the time of incident, accused declared him on illicit relations with his wife and caused knife blows at neck, he went unconscious and heard cries of deceased---Two prosecution witnesses had also not witnessed the actual incident but their evidence was relevant and reliable---Present case fully attracted the rule of res gestae---Record was silent as to why father of deceased remained calm, even FIR was not lodged by him---Such circumstances of the case had put to a caution in the matter of sentence of accused---Whole prosecution evidence was silent on the said aspects of the case---Thus, real cause of occurrence was shrouded in mystery and was completely suppressed by both the parties---Prosecution asserted a motive but failed to prove the same which might re-act against the sentence of death passed against the accused on the charge of murder---None had seen the accused while committing the murder of his wife in the house but there was huge evidence which clearly showed that accused had committed the murder of his wife in the house and attempted to commit murder of his paramour/injured---Said fact squarely constituted "proof beyond doubt" admitting no hypothesis other than guilt of accused---Father of deceased was also present at the door of the accused when he committed the murder of his daughter but neither he rescued her daughter nor lodged FIR of the incident---Brother of injured/witness was also present at the time of incident but he had also not lodged FIR to the police station---Prosecution had failed to prove the motive at trial---Said facts were the mitigating circumstances in the case, which were sufficient to adopt the alter course by awarding life imprisonment instead of death sentence---Appeal was partly allowed and death sentence was reduced to imprisonment for life in circumstances.

Ghulam Murtaza v. The State 2021 SCMR 149 and Ghulam Mohy-ud-Din alias Haji Babu and others v. The State 2014 SCMR 1034 rel.

Mrs. Razia Ali Zaman Khan Patoli for Appellant.

Shewak Rathore, Deputy Prosecutor General, Sindh for the State.

2023 Y L R 514

[Sindh (Sukkur Bench)]

Before Muhammad Junaid Ghaffar, J

Syed KAMIL SHAH (deceased) through legal heirs and 6 others---Applicants

Versus

PROVINCE OF SINDH through Secretary, Islamabad and others---Respondents

Civil Revision No. S-67 of 2005, decided on 7th February, 2022.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Benami transaction---Scope---Applicants filed a suit for declaration claiming therein that their predecessor was sole owner of the suit property and the same was owned in the name of respondents as ostensible owners---Trial Court decreed the suit whereas Appellate Court dismissed the suit---Validity---Applicants had produced relevant documents starting from 1953-54 till 1963-64, land revenue receipts, number shumari and field book of the suit property, whereas, the respondents could not rebut or challenge such documents---Applicants had also established that they had raised construction on the suit land---Possession all along had been enjoyed by the applicants---Respondents were acting as benami owners of the suit property---Revision application was allowed, judgment of Appellate Court was set aside and that of Trial Court was restored.

Manoj Kumar Tejwani for Applicants.

Nishad Ali Shaikh Associate of A.M Mobeen Khan for Respondent No.5.

Mehboob Ali Wassan, Assistant A.G-Sindh for Official Respondents.

2023 Y L R 524

[Sindh]

Before Aftab Ahmed Gorar, J

ROSHAN ALI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 1660 of 2022, decided on 27th September, 2022.

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

----S. 497(2)---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque--- Bail, grant of---Further inquiry---Complainant lodged three FIRs against the accused with same allegation in which accused was already enlarged on bail---Registration of multiple FIRs against the accused under same section made the case doubtful---Case of the accused fell within the ambit of further inquiry in terms of subsection (2) of S.497, Cr.P.C.---Post-arrest bail of accused was allowed, in circumstances.

Syed Amanullah Shah v. The State PLD 1996 SC 241 ref.

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

----S. 497---Constitution of Pakistan, Art. 4---Bail---Object---Object of bail was 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 trail---In criminal justice system every man is deemed to be innocent until duly found guilty---Purpose of putting the un-convicted persons in custody was nothing but to secure their attendance at the trail---Life and liberty of a citizen is very precious and guaranteed by Art. 4 of the Constitution.

PLD 1989 SC 585 ref.

Muhammad Nizar Tanoli for Applicant.

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

Mushtaq Ahmed Jehangiri for the Complainant.

2023 Y L R 541

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

SHER MUHAMMAD---Appellant

Versus

ANTI-TERRORISM COURT NO.IV, KARACHI DIVISION

and another---Respondents

Special Criminal Anti-Terrorism Jail Appeals Nos. 190 to 192 of 2020, decided on 19th April, 2022.

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

----Ss. 324, 353, 384, 385, 386 & 34---Sindh Arms Act (V of 2013), S.23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S.7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, extortion, putting a person in fear of injury in order to commit extortion, extortion by putting a person in fear of death or grievous hurt, common intention, possessing illicit arms, act of terrorism---Appreciation of evidence---Delay of four days in lodging FIR---Scope---Prosecution case was that the accused demanded extortion money from complainant and his father, issued threats of dire consequences to them, police tried to apprehend them when they reached for collecting extortion money, on seeing police, accused made firing upon police, in retaliation police also made firing, due to which accused persons were hit and fell down and were apprehended---First Information Report was lodged after a four days delay and such delay could be fatal to the prosecution case---Based on the particular facts and circumstances of the case, such delay was not found fatal to the prosecution case that the FIR was not lodged until four days after the original demand for extortion as often in such type cases the complainant hoped that the extortion demand would not be carried through and as in that case often out of fear of reprisals the complainant was reluctant to immediately lodge the FIR---In any event the FIR was against unknown persons as such there was no attempt by the complainant or the police to cook up a false case against the accused otherwise he would have been named in the FIR---Complainant also had no proven enmity with the accused and thus had no reason to implicate him in a false case---In addition neither the prosecution had received any undue benefit from the delayed FIR nor had the delay in lodging the FIR caused any prejudice to the accused and as such based on the particular facts and circumstances of the case delay in lodging the FIR was not found to be fatal to the prosecution's case---Circumstances established that the prosecution had proved its case against the accused, however the offences did not fall within the purview of the Anti-Terrorism Act as such accused was acquitted of the offences under the Anti-Terrorism Act---Appeal was dismissed by maintaining the convictions and sentences with regard to offences under Anti-Terrorism Act.

Dr. Muhammad Abrar v. The State SBLR 2010 Sindh 816; Ali Nawaz v. The State 2021 PCr.LJ 909; Shah Nawaz v. The State 2020 MLD 466 and The State/ANF v. Muhammed Arshad 2017 SCMR 283 ref.

Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872 rel.

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

----Ss. 324, 353, 384, 385, 386 & 34---Sindh Arms Act (V of 2013), S.23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S.7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, extortion, putting a person in fear of injury in order to commit extortion, extortion by putting a person in fear of death or grievous hurt, common intention, possessing illicit arms, act of terrorism---Appreciation of evidence---Recovery of extortion money, weapon of offence and crime empties---Reliance---Scope---Prosecution case was that the accused demanded extortion money from complainant and his father, issued threats of dire consequences to them, police tried to apprehend them when they reached for collecting extortion money, on seeing police, accused made firing upon police, in retaliation police also made firing, due to which accused persons were hit and fell down and were apprehended---Extortion money of Rs. 100,000/- was found in possession of the accused on his arrest on the spot in an envelope in denominations of Rs.5,000/----Memo of arrest and recovery fully supported the prosecution case which was made at the spot and contained all material details including recovery of empties at the spot---Pistol recovered from the accused on his arrest on the spot led to a positive Forensic Science Laboratory Report when matched with the recovered empties at the spot---Circumstances established that the prosecution had proved its case against the accused, however the offences did not fall within the purview of the Anti Terrorism Act as such accused was acquitted of the offences under the Anti Terrorism Act---Appeal was dismissed, in circumstances by maintaining the convictions and sentences with regard to the non-Anti-Terrorism Act offences so charged.

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

----Ss. 324, 353, 384, 385, 386 & 34---Sindh Arms Act (V of 2013), S.23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, extortion, putting a person in fear of injury in order to commit extortion, extortion by putting a person in fear of death or grievous hurt, common intention, possessing illicit arms, act of terrorism---Appreciation of evidence---Medical evidence---Scope---Prosecution case was that the accused demanded extortion money from complainant and his father, issued threats of dire consequences to them, police tried to apprehend them when they reached for collecting extortion money, on seeing police, accused made firing upon police, in retaliation police also made firing, due to which accused persons were hit and fell down and were apprehended---During the police encounter the accused was shot in the leg which was corroborated by the medical evidence---No blackening around the wound was found which indicated that it was not inflicted by the police on him at close range and as such tied in with the police evidence of the distance between the accused and the police during the encounter being about fifteen feet---Circumstances established that the prosecution had proved its case against the accused, however the offences did not fall within the purview of the Anti Terrorism Act as such accused was acquitted of the offences under the Anti Terrorism Act---Appeal was dismissed by maintaining the convictions and sentences with regard to the non-Anti-Terrorism Act offences so charged.

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

----Ss. 324, 353, 384, 385, 386 & 34---Sindh Arms Act (V of 2013), S.23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, extortion, putting a person in fear of injury in order to commit extortion, extortion by putting a person in fear of death or grievous hurt, common intention, possessing illicit arms, act of terrorism---Appreciation of evidence---Mobile phone recovered from the possession of accused---Scope---Prosecution case was that the accused demanded extortion money from complainant and his father, issued threats of dire consequences to them, police tried to apprehend them when they reached for collecting extortion money, on seeing police, accused made firing upon police, in retaliation police also made firing, due to which accused persons were hit and fell down and were apprehended---In the present case, mobile phone was recovered from which some calls were made to the complainant belonged to a witness, an independent witness who had reported that his phone had been stolen from him by two persons on motor bike to which he lodged FIR---Said witness had no enmity with any one and had no reason to make up a false story and did not even know that his phone had been stolen by the accused as he was not in a position to identify the accused as the accused wore a muffler on his face when he robbed him of his phone---Call Data Record revealed that on the day of the incident calls were made from the phone which was recovered from the accused to the complainant at the very location where it had been arranged for the extortion amount to be collected---Circumstances established that the prosecution had proved its case against the accused, however the offences did not fall within the purview of the Anti-Terrorism Act as such accused was acquitted of the offences under the Anti-Terrorism Act---Appeal was dismissed by maintaining the convictions and sentences with regard to the non-Anti-Terrorism Act offences so charged.

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

----Ss. 324, 353, 384, 385, 386 & 34---Sindh Arms Act (V of 2013), S.23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, extortion, putting a person in fear of injury in order to commit extortion, extortion by putting a person in fear of death or grievous hurt, common intention, possessing illicit arms, act of terrorism---Appreciation of evidence---Minor contradictions--- Scope---Prosecution case was that the accused demanded extortion money from complainant and his father, issued threats of dire consequences to them, police tried to apprehend them when they reached for collecting extortion money, on seeing police, accused made firing upon police, in retaliation police also made firing, due to which accused persons were hit and fell down and were apprehended---All the witnesses were consistent in their evidence and even if there were some contradictions in their evidence, same were considered as minor in nature and not material and certainly not of such materiality so as to effect the prosecution case/evidence and the conviction of the accused---Circumstances established that the prosecution had proved its case against the accused, however the offences did not fall within the purview of the Anti-Terrorism Act as such accused was acquitted of the offences under the Anti-Terrorism Act---Appeal was dismissed by maintaining the convictions and sentences with regard to the non-Anti-Terrorism Act offences so charged.

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. 324, 353, 384, 385, 386 & 34---Sindh Arms Act (V of 2013), S.23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, extortion, putting a person in fear of injury in order to commit extortion, extortion by putting a person in fear of death or grievous hurt, common intention, possessing illicit arms, act of terrorism---Appreciation of evidence---Unbroken chain of events---Scope---Prosecution case was that the accused demanded extortion money from complainant and his father, issued threats of dire consequences to them, police tried to apprehend them when they reached for collecting extortion money, on seeing police, accused made firing upon police, in retaliation police also made firing, due to which accused persons were hit and fell down and were apprehended---Record showed that evidence of the witnesses provided a believable corroborated unbroken chain of events from the time the accused and the co-accused demanding the extortion money from the complainant to the lodging of the FIR to the negotiation down of the extortion money to the complainant informing the police of the place where the extortion money was to be paid to the payment of the extortion money to the police encounter to the arrest of accused on the spot in an injured condition after the encounter from where the extortion money and unlicensed pistol was recovered from him and a phone which through Call Data Record also linked him to the extortion demands---Circumstances established that the prosecution had proved its case against the accused, however the offences did not fall within the purview of the Anti-Terrorism Act as such accused was acquitted of the offences under the Anti-Terrorism Act---Appeal was dismissed by maintaining the convictions and sentences with regard to the non-Anti-Terrorism Act offences so charged.

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

----Ss. 324, 353, 384, 385, 386 & 34---Sindh Arms Act (V of 2013), S.23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, extortion, putting a person in fear of injury in order to commit extortion, extortion by putting a person in fear of death or grievous hurt, common intention, possessing illicit arms, act of terrorism---Appreciation of evidence---Police witnesses---Scope---Prosecution case was that the accused demanded extortion money from complainant and his father, issued threats of dire consequences to them, police tried to apprehend them when they reached for collecting extortion money, on seeing police, accused made firing upon police, in retaliation police also made firing, due to which accused persons were hit and fell down and were apprehended---Police witnesses had no proven enmity or ill will towards the accused and had no reason to falsely implicate him in this case for instance by foisting a pistol and the extortion money on him---Evidence of such police witnesses could be fully relied upon---Circumstances established that the prosecution had proved its case against the accused, however the offences did not fall within the purview of the Anti-Terrorism Act as such accused was acquitted of the offences under the Anti-Terrorism Act---Appeal was dismissed by maintaining the convictions and sentences with regard to the non-Anti-Terrorism Act offences so charged.

Mushtaq Ahmed v. The State 2020 SCMR 474 rel.

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

----Ss. 324, 353, 384, 385, 386 & 34---Sindh Arms Act (V of 2013), S.23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, extortion, putting a person in fear of injury in order to commit extortion, extortion by putting a person in fear of death or grievous hurt, common intention, possessing illicit arms, act of terrorism---Appreciation of evidence---Defective investigation--- Scope---Prosecution case was that the accused demanded extortion money from complainant and his father, issued threats of dire consequences to them, police tried to apprehend them when they reached for collecting extortion money, on seeing police, accused made firing upon police, in retaliation police also made firing, due to which accused persons were hit and fell down and were apprehended---Although there were some defects/omissions in the prosecution case/investigation but were only of minor nature and did not dent the prosecution case or led to any benefit of doubt to be given to the accused---Circumstances established that the prosecution had proved its case against the accused, however the offences did not fall within the purview of the Anti-Terrorism Act as such accused was acquitted of the offences under the Anti-Terrorism Act---Appeal was dismissed by maintaining the convictions and sentences with regard to the non-Anti-Terrorism Act offences so charged.

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

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

----Ss. 324, 353, 384, 385, 386 & 34---Sindh Arms Act (V of 2013), S.23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, extortion, putting a person in fear of injury in order to commit extortion, extortion by putting a person in fear of death or grievous hurt, common intention, possessing illicit arms, act of terrorism---Appreciation of evidence---Act of terrorism---Scope---Prosecution case was that the accused demanded extortion money from complainant and his father, issued threats of dire consequences to them, police tried to apprehend them when they reached for collecting extortion money, on seeing police, accused made firing upon police, in retaliation police also made firing, due to which accused persons were hit and fell down and were apprehended---In the present case, the offences did not fall within the purview of the Anti-Terrorism Act as there was no intent, purpose or design to create terror and only an attempt to collect extortion money privately and secretly from the complainant therefore, the accused was acquitted of the offences under the Anti-Terrorism Act, in circumstances.

Ghulam Hussain v. State PLD 2020 SC 61 rel.

Habib-ur-Rehman Jiskani for Appellant.

Muhammad Iqbal Awan, Additional Prosecutor General, Sindh for Respondents.

2023 Y L R 581

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

GHULAM HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Bail Application No. S-513 of 2021, decided on 6th December, 2021.

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

----S. 497---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Bail, refusal of---Scope---Accused was nominated in the FIR with specific role that he while armed with Kalashnikov made successive fire shots on the person of deceased who succumbed to the injuries at the spot---Other witnesses in their statements recorded under S. 161, Cr.P.C. had also implicated the accused with same role in the commission of offence---Ocular evidence was corroborated by post-mortem report of the deceased which indicated that the death had occurred due to discharge of firearm, which was sufficient to cause death in ordinary course of life---Contention of accused that as per FIR he had fired on the non-vital part of body, could not be considered as the same would be deeper appreciation of evidence which was not permissible at bail stage---Prima facie, sufficient material was available on record to connect the accused with the commission of offence in which one person had lost his life---Accused was not entitled for the benefit of bail---Bail application was dismissed, in circumstances.

Iqbal Ahmed and others' case 2006 MLD 1930; Dinal v. The State 2017 PCr.LJ Note 122; Abdul Rehman alias Peero v. The State 2017 YLR Note 188; Mumtaz v. The State 2012 SCMR 556 and Mst. Irshad Begum v. Muhammad Afzal and others 1985 SCMR 1691 ref.

Ghani Khan v. The State and another 2020 SCMR 594 and Sohail Waqar alias Sohaila v. The State and others 2017 SCMR 325 rel.

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

----S. 497---Bail---Scope---Deeper appreciation of evidence is not permissible while deciding the bail plea of the accused and material collected during investigation is to be assessed tentatively.

Allah Bux Gabol for Applicant.

Shafi Muhammad Mahar, Deputy Prosecutor General for the State.

Mujahid Hussain Phulpoto for the Complainant.

2023 Y L R 621

[Sindh]

Before Fahim Ahmed Siddiqui, J

JAVED NISAR---Applicant

Versus

JALALUDDIN

and 7 others---Respondents

Criminal Miscellaneous Application No. 211 of 2019, decided on 26th July, 2021.

Penal Code (XLV of 1860)---

----Ss.342, 354, 452, 504, 506-B & 109---Criminal Procedure Code (V of 1898), Ss. 173 & 561-A---Inherent jurisdiction of High Court---Quashing of FIR---Wrongful confinement; assault or criminal force to woman with intent to outrage her modesty; house-trespass after preparation for hurt; assault or wrongful restraint; intentional insult with intent to provoke breach of the peace; criminal intimidation; and abetment were the allegations made in FIR registered against respondent---Complainant was aggrieved of order passed by Trial Court approving Final Investigation Report under S. 173, Cr.P.C. as "C" Class case---Validity---Case had come within the ambit of B-Class and not C-Class and final report under "C" Class submitted by investigating officer was not in accordance with law, who under the law should have submitted final report under "B" Class---Though Trial Court properly discussed the substance of the matter and passed speaking order with sound reasons but at the same time he did not follow ingredients of order passed by High Court earlier---If Trial Court could have followed earlier order of High Court, he would have come to the conclusion that matter was within the ambit of B-Class and not under C-Class and he should have disposed of the matter in B-Class---Inherit powers were conferred under S. 561-A, Cr.P.C. upon High Court to make such orders as could be necessary to give effect to any order under Criminal Procedure Code 1898 or to prevent abuse of process of any Court or otherwise to secure the ends of justice---High Court in exercise of power under S. 561-A, Cr.P.C., modified order passed by Trial Court and disposed of the matter in B-Class---Application was allowed accordingly.

The State v. Asif Ali Zardari and another 1994 SCMR 798; Maqbool Rehman v. The State and others 2002 SCMR 1076 and Miss Nusrat Yasmeen v. Registrar, Peshawar High Court PLD 2019 SC 719 rel.

Nadir Khan Burdi for Applicant.

Muhammad Umer Lakhani and Muhammad Ashfaq for Respondent No.1.

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

2023 Y L R 665

[Sindh]

Before Nazar Akbar and Zulfiqar Ahmad Khan, JJ

Syed MEHROZ MEHDI ZAIDI---Appellant

Versus

The STATE---Respondents

Special Criminal Anti-Terrorism Appeal No. 152 of 2019 and Confirmation Case No.6 of 2019, decided on 14th December, 2020.

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

----Ss. 302, 324 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Confessional statement of accused and injured witness--- Infirmities---Scope---Prosecution case was that the accused along with his co-accused in furtherance of common intention made firing upon the friends of the complainant, due to which one died and other was injured---Statements of accused and injured were recorded by the Judicial Magistrates---Judicial Magistrate in his examination-in-chief stated that at the time of recording of statement of witness under S.164, Cr.P.C., both, the witnesses and the accused, were produced before him after fulfilling all legal requirements, however, in his examination-in-chief neither he had confirmed that he had not informed the accused that he was entitled to engage a counsel to cross-examine the witness nor he verified from the accused or the Investigating Officer that accused had been served with the notice under S.160, Cr.P.C.---Even copy of statement of witness under S.161, Cr.P.C. was not provided to the accused before recording statement of the witness---Record did not show that even Judicial Magistrate himself had with him copy of statement of witness under S. 161, Cr.P.C., at the time of recording his statement under S.164, Cr.P.C.---Record transpired that the Judicial Magistrate handed over custody of the accused back to the same Investigating Officer---Confessional statement of accused was recorded and as stated by the Investigating Officer in his examination-in-chief, he interrogated the accused in the lockup of Police Station where the accused was confined in some other case and re-arrested him in presence of mashirs---Accused had confessed his guilt in the present case before the Investigating Officer, meaning thereby that after confessional statement the accused was not sent to judicial lockup---Conviction and sentence of the accused could not be upheld, in circumstances---Appeal against conviction was allowed.

Muhammad Parvez and others v. The State and others 2007 SCMR 670 and Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 rel.

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

----Ss. 302, 324 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Confessional statement of accused and injured witness---Delay of about five years in recording the statements of accused and witness---Effect---Prosecution case was that the accused along with his co-accused in furtherance of common intention made firing upon the friends of the complainant, due to which one died and other was injured---Record showed that as per prosecution story, two unidentified persons had suddenly opened fire at around Maghrib prayer time from the back of the victims---Without any identification parade after more than five years, the prosecution had produced the accused before the Judicial Magistrate---Witness who was injured with one bullet in his back and two in his neck after five years of incident claimed that the suspected accused present in court was one of those who fired upon them---Trial Court failed to appreciate that the statement of injured was not subjected to the test of cross-examination and it was even otherwise unbelievable because it was not supported with medical evidence regarding his injuries and his treatment---Conviction and sentence of the accused could not be upheld, in circumstances---Appeal against conviction was allowed.

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

----Ss. 302, 324 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Medical evidence and ocular account---Contradictions---Scope---Prosecution case was that the accused along with his co-accused in furtherance of common intention made firing upon the friends of the complainant, due to which one was died and other was injured---Did not attract a prudent mind that the victim who had received three bullets, two in his neck and one on his back, was in a position to stand up and see people who were firing and running away---Man injured in the back and neck could stand up was unbelievable---Not only the said circumstances rendered the evidence of the witness unfit and unreliable but the failure of the witness himself and the prosecution to produce any medical certificate confirming injuries, if any, to the injured witness rendered the entire incident and his injury unbelievable---Conviction and sentence of the accused could not be upheld, in circumstances---Appeal against conviction was allowed.

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

----S. 164--- Delay in recording confessional statement of accused---Scope---Confessional statement could not be used as substantive evidence of fact when there was clear unexplained delay in recording the same.

Muhammad Parvez's case 2007 SCMR 670 rel.

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

----S. 164--- Confessional statement---Scope---Judicial confession recorded in one case could not be relied/used in another case as each and every case had its own particular facts and circumstances.

Muhammad Farooq for Appellants.

Ms. Rahat Ahsan, Additional P.G. for Respondents.

2023 Y L R 684

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

Mst. JAMTI KHATOON MASTOI---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No. S-72 and M.A. No.4909 of 2019, decided on 21st April, 2022.

Criminal Procedure Code (V of 1898)---

----S. 514---Forfeiture of surety bond---Procedure--- Imposition of fine on surety---Scope---Fine was imposed on petitioner who had stood surety for accused, who had absconded---Contention of petitioner was that she had stood surety for accused on humanitarian grounds and she traced out the accused and submitted application before the Trial Court intimating that the accused was confined in District Jail of other Province---On the application of surety, the Trial Court had also issued production order, however, the accused was not produced by the said Jail Authorities---After his release from jail, accused did not appear before the Trial Court, however, the surety appeared before the Trial Court together with accused and filed two separate applications, one by accused for his surrender before the Trial Court and the other by the applicant/ surety seeking time to submit reply to notice under section 514, Cr.P.C.---Applicant/surety submitted her reply---Defence contended that when the applicant produced the accused before the Trial Court, then imposition of 1/4th surety amount upon her was unjustified---Validity---Accused was not only produced by the applicant/surety, but he also himself surrendered through his application and then was taken into custody by the Trial Court---Applicant/ surety stood absolved of her legal liability to produce the said accused before the Trial Court---Impugned order in view of said legal-cum-factual position seemed to be unjustified and could not be maintained---Revision petition was allowed by setting aside impugned order.

Ghulam Rasool v. The State 1984 PCr.LJ 2652; Mukhtar Ali v. The State 1991 PCr.LJ 1625; Muhammad Sohail Nawaz Khan v. The State 1999 YLR 2153; Islam Badshah v. The State 2014 MLD 1806 and Janat Wali v. The State 2019 MLD 54 rel.

Abdul Rehman Bhutto for Applicant/surety.

Ali Anwar Kandhro, Addl. P.G. for the State.

2023 Y L R 690

[Sindh]

Before Aftab Ahmed Gorar, J

Dr. NOOR-UL-HAQ and 3 others---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.(S) 956 of 2021, decided on 14th September, 2021.

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

----S. 498---Penal Code (XLV of 1860), S. 337-F(vi)---Munaqqilah---Bail, grant of---Civil dispute between parties---Scope---Accused persons sought bail before arrest---Admittedly, there was a clash between the accused and the complainant party in which persons from both the sides were injured---Accused party had also lodged an FIR at the same police station against the complainant as a counter blast and had also placed photographs showing that an accused got injuries on his head and lips---Accused persons and complainant were brothers of each other and in that scenario dispute on money could not be ruled out while they were jointly running a madrassah as claimed---As far as injuries to the complainant was concerned, the photographs showed a mob of people rushing towards the house of the complainant, however, they did not show who had caused injury to the complainant---Prima facie, case against accused persons appeared to be doubtful, benefit of which went to the accused persons---No complaint of misuse of concession of bail or tempering the record was pointed out---No specific role had been assigned to any of the accused persons---Accused persons were admitted to pre-arrest bail, in circumstances.

Syed Amanullah Shah v. The State PLD 1996 SC 241 rel.

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

----S. 497---Bail---Tentative assessment---Scope---Deeper appreciation of evidence and circumstances appearing in the case is 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.

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

----S. 497---Bail---Scope---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.

Qaim Ali Memon for Applicants along with applicants.

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

Afzal Khan Gudaro for the Complainant.

2023 Y L R 704

[Sindh]

Before Nazar Akbar and Zulfiqar Ahmad Khan, JJ

MUHAMMAD SOHAIL---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 135, 136, Special Criminal Anti-Terrorism Jail Appeal No. 157 of 2020, decided on 25th February, 2021.

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

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Prosecution case was that the accused persons made firing upon police with intention to kill them, in retaliation and self defence, police party also started firing upon them, resultantly, one accused succumbed to injuries on the spot, while two other accused sustaining bullet injuries were apprehended by police---Evidence of the star witnesses the complainant and one who participated in encounter, were more than enough to conclude that the entire story was false and concocted---Prosecution had failed to obtain corroboration of the story of complainant from the Rangers who were eye-witnesses as they were accompanying the police party in six mobiles---Complainant did not disclose name of anyone of the officials of Rangers---Statement of complainant that two Police Constables accompanied the injured and deceased to the hospital was contradicted by Medical Officer---Medical Officer did not mention names of said Police Constables in his deposition---Medical Officer categorically stated that the injured and dead body were brought by Inspector of Rangers, and therefore, he informed the police control---None of the Police Officer was accompanying the injured and deceased---Circumstances established that the prosecution had failed to prove its case against the accused 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. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Lack of jurisdiction---Scope---Prosecution case was that the accused persons made firing upon police with intention to kill them, in retaliation and self defence, police party also started firing upon them, resultantly, one accused succumbed to injuries on the spot, while two other accused sustaining bullet injuries were apprehended by police---Prosecution had failed to produce any evidence against the accused persons showing their involvement in any crime that prompted the police party against the accused who at the relevant time were more than 35 miles away to rush to get hold of accused persons situated in the jurisdiction of Police Station in other District---According to the Police Rules, 1934, once the police of a District had received any information of offence in the jurisdiction of other District, the police of other District were required to take action only in accordance with the provision of S. 166, Cr.P.C read with Rr.25.3 & 25.4 of the Police Rules, 1934---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

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

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Entry in roznamcha---Non-production of--- Effect--- Scope---Prosecution case was that the accused persons made firing upon police with intention to kill them, in retaliation and self defence, police party also started firing upon them, resultantly, one accused succumbed to injuries on the spot, while two other accused sustaining bullet injuries were apprehended by police---Record showed that the prosecution had failed to bring on record relevant entries of the Police Station to begin the action and/or entry at Police Station of other District to continue the action within the jurisdiction and/or any other entry showing presence of criminals at the place of encounter---Police was not justified in taking action against the accused and killing a man in the name of encounter---Roznamcha entries of departure and arrival of police was mandatory to prove the very presence of the police at the relevant time at the place of incident---Failure to produce entry of departure and arrival from police station had been declared a case of serious doubts in the prosecution story for which benefit had to go to 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 were acquitted by setting aside convictions and sentences recorded by the Trial Court.

Abdul Sattar v. The State 2002 PCr.LJ 51; Waris v. The State 2019

YLR 2381 and Mohammad Hayat and 3 others v. The State 2018 PCr.LJ Note 61 rel.

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

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Recovery of pistol from the possession of accused and crime empties from the spot---Reliance---Scope---Prosecution case was that the accused persons made firing upon police with intention to kill them, in retaliation and self defence, police party also started firing upon them, resultantly, one accused succumbed to injuries on the spot, while two other accused sustaining bullet injuries were apprehended by police---One .30 bore pistol without number was allegedly recovered from accused---According to Forensic Science Laboratory Report, a .30 bore pistol sent to Forensic Science Laboratory had also rubbed number, however, at the trial before the court .30 bore rubbed number pistol was not produced---Complainant on seeing the case property confirmed that digit 1928/20 SPFA were engraved on the body of pistol produced before the court---Pistol recovered from the accused was not produced before the Court---Forensic report had completely contradicted the use of .30 bore pistol rubbed number by any of the accused persons for firing on the police since it was not produced in court---Consequently, the empties of .30 bore pistol, even if matched, would not be a proof of firing by the accused on the police party thirty .30 bore pistol and empties mentioned in Forensic Science Laboratory Report were not produced in Court---Likewise the allegation that five (5) shots from .9 mm pistol were fired by the deceased was also not proved---Forensic Science Laboratory Report showed that two of the empties were not fired from the .9mm pistol recovered from the deceased---Investigating Officer had not explained as to why he failed to produce the allegedly rubbed number pistol recovered from accused and from where he got two empties of .9mm pistol which did not match with .9mm pistol allegedly used by the deceased---Use of official weapon by police to kill one of the accused, too, was not proved since Investigating Officer had not sent official weapon to Forensic laboratory for matching thirteen empties of 9.62 x 39 mm weapon recovered from the scene of incident---Weapons recovered from the accused and empties from the crime scene had become highly doubtful in the light of documentary evidence of Forensic Science Laboratory Report---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of 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)---

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Delay of three days in sending the weapons and empties for forensic analysis---Effect---Prosecution case was that the accused persons made firing upon police with intention to kill them, in retaliation and self defence, police party also started firing upon them, resultantly, one accused succumbed to injuries on the spot, while two other accused sustaining bullet injuries were apprehended by police---In addition to the failure of prosecution to produce in Court the entire case property mentioned in the FIR particularly the pistol allegedly recovered from accused, the Forensic Science Laboratory Report had made the case of prosecution even more doubtful since safe custody of weapons and empties was not established---Investigating Officer had received case properties including weapons and empties and did not sent the weapons and empties immediately to the Forensic Laboratory and retained the same for three days with him---Investigating Officer had not explained that where had been the said weapons and empties during that period---No entry of handing over of the weapons and empties to any Malkhana incharge of Police Station had been produced by the Investigating Officer---Investigating Officer, in his cross-examination had categorically admitted that in his investigation report he had not mentioned cause of delay in sending weapon to Forensic Science Laboratory---Not only that, Investigating Officer had also confirmed in his cross-examination that on fabric bag in which weapon allegedly recovered from accused, name/signature of witness were not available---Said admission also confirmed that there was no justification for trial court to rely on Forensic Science Laboratory Report as a proof of alleged attack on the police by the accused party and even convict accused for the offences under S. 23(1)(a) of the Sindh Arms Act, 2013---Delay in sending the weapon to Forensic Science Laboratory was fatal to prosecution case---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

Kamaluddin alias Kamala v. The State 2018 SCMR 577 rel.

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

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Material discrepancies and lacunas existed in the prosecution evidence---Effect---Prosecution case was that the accused persons made firing upon police with intention to kill them, in retaliation and self defence, police party also started firing upon them, resultantly, one accused succumbed to injuries on the spot, while two other accused sustaining bullet injuries were apprehended by police---Record showed that not a single bullet fired by any of the accused and the deceased (who was found dead with a gun in his hand) hit the mobile of Police or Rangers, orany of the several police/rangers' officials involved in the encounter---To prove the encounter, the Investigating Officer had not even bothered to send official weapons for Forensic Science Laboratory to verify that the bullets which killed the deceased were in fact fired by the official weapons of Police Officials, who had admitted making fires upon the accused/ deceased---Deceased as per medical report received eight firearm injuries, four bullets pierced through his chest, one each hit his gluteal region, elbow joint, forearm and thigh, which made it to be a case of the deceased having been killed by a Firing Squad---Investigating Officer, in the cross-examination, had not solved the mystery that from where the Police Station Superhighway Industrial Area police reached to the place of encounter and even the entry within the jurisdiction of the place of encounter had not been produced which literally reduced the case of prosecution to ashes---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

Muhammad Akram Khan for Appellant (in Spl. Crl. A.T.As Nos.135 and 136 of 2020).

Superintendent, Youthful Offenders Industrial and Correctional Facility, Karachi for Appellant (in Special Criminal A.T.J.A No.157 of 2020).

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

2023 Y L R 740

[Sindh]

Before Zulfiqar Ahmad Khan, J

MUHAMMAD KARIM-UD-DIN QURESHI through legal heirs and others---Applicants

Versus

DEPUTY COMMISSIONER DISTRICT EAST, KARACHI and 3 others---Respondents

Civil Reference No. 1 of 2010, decided on 15th July, 2022.

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

----Ss. 9, 11 & 18--- Reference---Compensation---Fair value---Determina-tion---Applicant was owner of house acquired by respondents/acquiring body for public use---Grievance of petitioner was that compensation awarded by respondents/acquiring body was not fairly determined---Validity---Witness of respondents/acquiring body admitted that bungalow was to fetch more price as compared to a small house or a hut---House in question was in the vicinity of commercial area facing thoroughfare and was in the midst of commercial activities as admitted by the witness of the acquiring---Respondents/acquiring body failed to assess true value of the house nor took into consideration the factors for assessing the value---Commercialization of area of land in question was already permitted by City District Government Karachi---Fair market value of the land was not determined by respondents/acquiring body as per guidelines established for such calculations---Value asserted by applicant/property owner was fully supported by valuation certificates and the same remained un-challenged by respondents/acquiring body---High Court declared that reasons were a decree and statement of grounds of every such award a judgment within the meaning of S. 2(2) and (9), C.P.C.---High Court enhanced compensation of property as per value proved by applicant/property owner but mark-up was reduced at the rate of 5% instead of 15%---Reference was allowed accordingly.

PLD 1995 SC 314; PLD 2011 SC 119; PLD 2004 SC 512; 2009

SCMR 771; PLD 2010 SC 719; 2011 SCMR 1244 and 2000 SCMR 870 ref.

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

----Ss. 11, 26 & 27---Award---Connotation---Award passed by Collector under S.11 of Land Acquisition Act, 1894 and judgment passed by Court on a reference by Collector on that award are both to be understood as "Award".

Government of Sindh v. Meho Khan 1988 CLC 715 and Azad Government of the State of Jammu and Kashmir v. Muhammad Rafique Khan 2009 CLC 1378 rel.

Naraindas C. Motiani for Applicants.

Pervez Ahmed Mastoi, A.A.G. for Respondents.

2023 Y L R 750

[Sindh (Hyderabad Bench)]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

MUHAMMAD ASHRAF---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-68 and Confirmation Case No. D-08 of 2015, decided on 1st July, 2021.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Accused was charged for committing murder of the brother of complainant---Ocular account had been furnished by three witnesses including complainant---Said three eye-witnesses fully supported the prosecution case---All three of them, during cross-examination were on same line and no major contradiction was pointed out by defence---Eye-witnesses being workers at the shop/place of occurrence were natural witnesses---Presence of said witnesses at the place of incident at the relevant time was established---Incident was of day time and all witnesses knew the accused prior to the incident, therefore, there was no chance of mistaken identity--- Circumstances established that the prosecution had successfully proved its case against the accused beyond any shadow of doubt---Appeal was dismissed accordingly.

Zeeshan alias Shani v. The State 2012 SCMR 428; Noor Muhammad v. The State 2010 SCMR 97; Muhammad Fiaz Khan v. Ajmer Khan and another 2010 SCMR 105; Iftikhar Hussain v. The State 2004 SCMR 1185; Hashim Qasim v. State 2017 SCMR 986; Muhammad Nawaz v. The State PLD 2005 SC 40; Tariq Pervez v. The State 1995 SCMR 1345; Ayub Masih v. The State PLD 2002 SC 1048; Yameen Kumhar v. The State PLD 1990 Kar. 275; Amjad Shah v. The State PLD 2017 SC 152; Ghulam Mohy-ud-Din v. The State 2014 SCMR 1034; Ahmad Nawaz v. The State 2011 SCMR 593; Iftikhar Mehmood v. Qaiser Iftikhar and others 2011 SCMR 1165; Muhammad Imran alias Asif v. The State 2013 SCMR 782; Sabir Hussain alias Sabri v. The State 2013 SCMR 1554; Zeeshan Afzal alias Shani v. The State and another 2013 SCMR 1602; Muhammad Anwar v. The State 2014 SCMR 338; Naveed alias Needu v. The State and others 2014 SCMR 1464; Muhammad Nadeem Waqas v. The State 2014 SCMR 1658; Muhammad Asif v. Muhammad Akhtar and others 2016 SCMR 2035; Qaddan and others v. The State 2017 SCMR 148 and Muhammad Sadiq v. The State 2017 SCMR 144 ref.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Interested witnesses---Scope---Accused was charged for committing murder of the brother of complainant---Contention was that the witnesses were near relatives of the deceased and being interested their evidence could not be relied upon---Said contention of prosecution had no force because the eye-witnesses had sufficiently explained the date, time and place of occurrence as well as each and every event of the occurrence---Where the witnesses fell within the category of natural witnesses and detailed the manner of the incident in a confidence-inspiring manner then the only escape available to the accused was to satisfactorily establish that witnesses were not the witnesses of truth but interested one---Based on the particular facts and circumstances of the case, mere relationship of eye-witnesses with the deceased alone was not sufficient to discard the testimony of the complainant and the other eye-witnesses---Circumstances established that the prosecution had successfully proved its case against the accused beyond any shadow of doubt---Appeal was dismissed accordingly.

(c) Criminal trial---

----Witness---Interested witness---Scope---Interested witness was not the one who was relative or friend but was the one who had a motive to falsely implicate an accused.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd---Appreciation of evidence---Defence plea---Scope---Accused was charged for committing murder of the brother of complainant---Accused alleged that due to previous enmity, he was implicated in the case---No substance had been brought on record by the accused to justify his false implication in the case at the hands of the complainant party on account of the previous enmity---Accused, in the matters of capital punishment, would not stand absolved by making a mere allegation of dispute/ enmity but would be required to bring on record that there had been such a dispute/enmity which could be believed to have motivated the natural witnesses in involving the innocent at the cost of the escape of real culprits---Where the natural witnesses were in blood-relations then normally the possibility of substitution became rare---Accused had failed to bring on record any evidence to show that the deep-rooted enmity existed earlier between the parties which could have been the reason for false involvement of the accused in the case, particularly when it was a case of single accused---Circumstances established that the prosecution had successfully proved its case against the accused beyond any shadow of doubt---Appeal was dismissed accordingly.

Lal Khan v. State 2006 SCMR 1846; Farooq Khan v. The State 2008 SCMR 917; Zulfiqar Ahmed and another v. State 2011 SCMR 492 and Zahoor Ahmed v. The State 2007 SCMR 1519 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence on the pointation of accused and blood stained clothes of accused---Reliance---Scope---Accused was charged for committing murder of the brother of complainant---Record showed that on the same day of occurrence, during further interrogation, accused confessed his guilt and told police that he had committed murder of deceased with hatchet and disclosed that hatchet was concealed by him in the roof of his house and became ready to produce the same---Police along with the accused and mashirs went to the house of accused in a private vehicle, accused led the police party toward his house and from the roof he took out the hatchet with wooden handle stained with blood and produced before the police in presence of mashirs which was recovered by the police and prepared the mashirnama---Mashir was cross-examined but nothing favourable to accused was brought on record by the defence---Prosecution proved beyond a reasonable doubt that the crime weapon (hatchet) used in the commission of offence was recovered from the roof of house of the accused which only accused knew and no one else---Accused was arrested on the same day and the clothes worn by the accused at the time of his arrest were stained with blood---Hatchet and the clothes of the accused were sent for chemical analyzer and as per report both were stained with human blood---Police witnesses had no enmity or ill-will towards the accused and had no reason to falsely implicate him in the case---Even any such enmity or ill-will was not suggested from the police witness as to why they foisted the hatchet and the clothes stained with human blood---Evidence of police witnesses could safely be relied upon---Circumstances established that the prosecution had successfully proved its case against the accused beyond any shadow of doubt---Appeal was dismissed accordingly.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence--- Related witness---Substitution---Accused was charged for committing murder of the brother of complainant---Did not appeal to reason, logic or commonsense that a real brother who was an eye-witness would let the murderer of his real brother go free by substituting him with an innocent person---Circumstances established that the prosecution had successfully proved its case against the accused beyond any shadow of doubt---Appeal was dismissed accordingly.

Allah Ditta v. The State PLD 2002 SC 52 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive was proved---Scope---Accused was charged for committing murder of the brother of complainant---Motive setup by the prosecution against the accused was very strong that for a long period the deceased was working with accused at his shop and few months prior to the incident deceased opened his own shop for same work near the shop of accused which angered the accused who warned him to close and on refusal the deceased was murdered by him---Circumstances established that the prosecution had successfully proved its case against the accused beyond any shadow of doubt---Appeal was dismissed accordingly.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Contradictions in the statements of witnesses---Scope---Accused was charged for committing murder of the brother of complainant---Record showed that the accused had not been able to point out any major contradiction in the evidence of witnesses---Some minor contradictions were found in the evidence of prosecution witnesses which might have occurred due to lapse of time---Where in the evidence prosecution established its case beyond reasonable doubt then if there were some minor contradictions which always were available in each and every case as no one could give evidence like photograph such contradictions could be ignored---Circumstances established that the prosecution had successfully proved its case against the accused beyond any shadow of doubt---Appeal was dismissed accordingly.

Zakir Khan v. The State 1995 SCMR 1793 rel.

Salahuddin Khan Gandapur for Appellant.

Shaukat Ali Kaka for the Complainant.

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

2023 Y L R 776

[Sindh]

Before Muhammad Iqbal Kalhoro and Shamsuddin Abbasi, JJ

BABAR MIRZA CHUGHTAI---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman, NAB and 2 others---Respondents

Constitutional Petition No. D-4198 and C.M.As. Nos. 19150, 17185 and 17186 of 2021, decided on 8th November, 2021.

National Accountability Ordinance (XVIII of 1999)---

----S. 23---Constitution of Pakistan, Art. 199--- Constitutional petition---Restriction on property transfer---Petitioner was running a housing scheme and facing proceedings under National Accountability Ordinance, 1999, on the basis of complaints filed by 39 persons---Petitioner sought removal of restrictions imposed under S. 23 of National Accountability Ordinance, 1999---Validity---Caution under S. 23 of National Accountability Ordinance, 1999, would remain particularly on 39 units and petitioner could take up remaining work and deal with owners of remaining units for giving them possession of their units in accordance with law, irrespective of such caution, i.e. S. 23 of National Accountability Ordinance, 1999---Such dispensation was subject to any complaint received by NAB in future---Such was not a permission to petitioner to sell/alienate units to a third party other than the actual allottees/ owners, which if contemplated or done already, would be amenable to relevant law---Parties were at liberty to get their redress of grievances before relevant forums in accordance with law---Constitutional petition was disposed of accordingly.

Ahmed Ali Hussain for Petitioner.

2023 Y L R 780

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

Syed AIJAZ ALI SHAH QADRI---Appellant

Versus

The STATE---Respondent

Special Criminal A.T.A. No. 306 of 2018, decided on 18th January, 2022.

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

----Ss. 302, 324, 353, 186, 332, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, hurt, abetment, common intention, act of terrorism---Appreciation of evidence---First Information Report lodged with promptitude---Scope---Accused was charged that he along with his co-accused made indiscriminate firing upon Police Party, as a result of which two Police Officials were killed at the spot, while one sustained fire arm injury, however, police party also retaliated in self-defence---First Information Report was registered with promptitude by the complainant who was present at the time of the incident which left no time for the police to cook up a false case against the accused---Had the complainant wanted to falsely implicate the accused he could have named him in the FIR---Instead the FIR was against unknown terrorists--- 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) Penal Code (XLV of 1860)---

----Ss. 302, 324, 353, 186, 332, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, hurt, abetment, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Scope---Accused was charged that he along with his co-accused made indiscriminate firing upon Police Party, as a result of which two Police Officials were killed at the spot, while one sustained fire arm injury, however, police party also retaliated in self-defence---Challan was filed in "A" class one year after the incident---In that challan none of the (so-called) independent eye-witnesses were mentioned which casted doubt on how and why the (so called) independent eye-witnesses popped up a number of years later to appear before an identification parade of the accused especially as even in their own evidence they did not say that they recorded their S.161, Cr.P.C. statements on the spot but only apparently gave their names and contact details to the police---Names of said witnesses were also not mentioned in the FIR---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.

Muhammad Yasin v. The State PLD 2003 Lah. 425; Muhammad Saleem v. The State NLR 1985 UC 208; Asghar Ali alias Sabah and others v. The State and others 1992 SCMR 2088; Saidullah v. The State PLD 1994 Kar. 122; Khadim Hussain v. The State 1985 SCMR 721; Mah Gul v. The State 2009 SCMR 4; Mehmood Ahmad and 2 others v. State 1995 SCMR 127; Ghulam Rasul and 3 others v. The State 1988 SCMR 557; Zahid Hussain v. Ajeeb and others 2020 YLR 1733; Javed Khan alias Bacha and another v. The State and another 2017 SCMR 524; Mian Sohail Ahmed and others v. The State 2019 SCMR 956; Sabir Ali alias Fauji v. The State 2011 SCMR 563; Azhar Mehmood and others v. The State 2017 SCMR 135; Noor Islam v. Ghani ur Rehman and another 2020 SCMR 310; Muhammad Pervez and others v. The State and others 2007 SCMR 670; Dadan alias Allahdad v. The State 2000 MLD 595; Ejaz Ahmad alias Fooji and others v. The State Criminal Appeal No.327 of 2005; Muhammad Farooq v. The State Criminal Appeal No.339 of 2005; The State v. Ejaz Ahmad alias Fooji and others Murder Reference No.507 of 2005 2014 Cr.LJ 475; Qaiser and 2 others v. The State 2017 PCr.LJ 327; Farman Ahmed v. Muhammad Inayat and others 2007 SCMR 1825; Muhammad Nadeem alias Banka v. The State 2011 SCMR 1517; Naveed Anjum alias Naveed Hussain v. The State and another 2014 PCr.LJ 93; Sarfraz alias SAFU and others v. The State 2017 YLR Note 220; Muhammad Wali Shah and another v. State and another 2017 PCr.LJ 779; Qazi alias Dost Muhammad and another v. The State 2014 PCr.LJ 611; Abdul Jabbar and another v. The State 2019 SCMR 129; Shafiq-ur-Rehman v. The State SBLR 2018 Sindh 779; Mst. Marvi Bhatti v. The State 2018 MLD 1329; Muhammad Sharif Shar v. The State 2000 PCr.LJ 1882; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596; Muhammad Arshad Kiani v. The State and others 2018 YLR 1002; Muhammad Idrees v. Collector of Customs and others PLD 2002 Kar. 60; Khalid Javed and another v. The State 2003 SCMR 1419; Rehmatullah and another v. The State 2005 PCr.LJ 60; Raja Zahid Hussain v. The State Criminal Appeal No.22-E of 2004; Abdul Nadeem Khan v. Chairman NAB and another in Criminal Appeal No. 23-E of 2004; Sh. Muhammad Amin v. Chairman NAB and another Criminal Appeal No.24-E of 2004; Abdul Hayee Qamar v. The State Criminal Appeal No.25-E of 2004; Qazi Naeem Ahmad v. The State Criminal Appeal No.26-E of 2004; Padri Sharif Alam v. The State Criminal Appeal No.27-E of 2004, 2012 Cr.LJ 505; Rajab Ali v. The State and others 2018 YLR 809; Syed Anwar Badshah v. Chairman, National Accountability Court, Islamabad and 2 others 2013 PCr.LJ 1607; Imran alias Dully and another v. The State and others 2015 SCMR 155; Nasir Javaid and another v. The State 2016 SCMR 1144; Allah Bakhsh v. State PLJ 2015 Cr.C. Lahore 148; Muhammad Shoaib alias Shahoo v. The State in Special Criminal A.T.A. No.62 of 2021 and Fahad Bin Shakeel alias Bandoo v. The State Special Criminal A.T.A. No.63 of 2021 ref.

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

----Ss. 302, 324, 353, 186, 332, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, hurt, abetment, common intention, act of terrorism---Appreciation of evidence---Delay in conducting the test identification parade---Scope---Accused was charged that he along with his co-accused made indiscriminate firing upon Police Party, as a result of which two Police Officials were killed at the spot, while one sustained fire arm injury, however, police party also retaliated in self-defence---In the present case, the eye-witnesses would not have been able to correctly, safely and reliably identify the accused after a lapse of seven and thirteen years respectively of the incident---Conduct of the identification parade became inconsequential, in circumstances---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.

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

----Ss. 302, 324, 353, 186, 332, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, hurt, abetment, common intention, act of terrorism---Appreciation of evidence---Medical evidence---Scope---Accused was charged that he along with his co-accused made indiscriminate firing upon Police Party, as a result of which two Police Officials were killed at the spot, while one sustained fire arm injury, however, police party also retaliated in self-defence--- With no eye-witness evidence to the murders the medical evidence became inconsequential as it could only reveal how the deceased died, what kind of weapon was used and the seat of the injuries---Medical evidence could not identify the person who inflicted the injuries---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.

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

----Ss. 302, 324, 353, 186, 332, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, hurt, abetment, common intention, act of terrorism---Appreciation of evidence---Confession before police---Scope---Accused was charged that he along with his co-accused made indiscriminate firing upon Police Party, as a result of which two Police Officials were killed at the spot, while one sustained fire arm injury, however, police party also retaliated in self-defence---Record showed that the accused confessed the offence whilst in police custody---Confessions before the police were inadmissible in evidence---No reliance could be placed on such confession---Even otherwise, it did not appeal to logic, reason or commonsense that a person behind bars against whom there was no evidence would confess to an offence which carried the death penalty---Confession of accused was also not recorded before a Magistrate despite the accused being taken before a Magistrate for an identification parade---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.

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

----Ss. 302, 324, 353, 186, 332, 109 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, hurt, abetment, common intention, act of terrorism---Appreciation of evidence---Recovery of car and crime empty---Scope---Accused was charged that he along with his co-accused made indiscriminate firing upon Police Party, as a result of which two Police Officials were killed at the spot, while one sustained fire arm injury, however, police party also retaliated in self-defence---Accused taking the police to the place of wardat where the car was abandoned was irrelevant as the police already knew where the place of wardat was and had already found the abandoned car and there was no evidence to link the accused to the abandoned car---No weapon was recovered from the accused as such the recovery of any empties at the crime scene and any Forensic Science Laboratory Report was irrelevant and did not connect the accused to the commission of the offence---Prosecution was not able to correctly and safely identify the accused as one of the persons who fired on the police party and murdered the deceased---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.

(g) Criminal trial---

----Benefit of doubt---Principle---Prosecution must prove its case against the accused beyond a reasonable doubt---Benefit of doubt will go to the accused by way of right as opposed to concession.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Muhammad Jamil for Appellant.

Muhammad Iqbal Awan, Additional Prosecutor General for Respondent.

2023 Y L R 831

[Sindh (Hyderabad Bench)]

Before Abdul Mobeen Lakho, J

MANO---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-51 of 2013, decided on 26th February, 2021.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular account---Scope---Accused was charged for committing murder of daughter of complainant/wife of accused by causing hatchet blows---Ocular account of the incident had been furnished by three eye-witnesses, including complainant---Eye-witnesses had corroborated each other on all important aspects of the case i.e. the date, time and place of occurrence as well as the mode and manner in which the occurrence took place---Said witnesses were also consistent on all the material aspects of the case and their evidence had remained unshaken and un-shattered---Presence of eye-witnesses was established at the place of occurrence because the said witnesses were doing labour at the crop besides the crop where the accused and deceased were doing labour---All the three eye-witnesses remained consistent and firm regarding their stance qua the role of the accused in perpetrating the alleged offence---Deceased had been done to death by the accused by causing hatchet injuries on her vital part i.e. neck---Accused had been arrested by the police on the same day i.e. and one blood-stained hatchet was recovered which was sent for analysis to the chemical examiner and the report was in positive---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Muhammad Asif v. The State 2008 SCMR 1001; Liaquat Ali v. The State 2008 SCMR 95; Muhammad Imran v. The State 2020 SCMR 857; Abdul Jabbar and another v. The State 2019 SCMR 129; Tarique Parvez v. The State 1995 SCMR 1345; G. M. Niaz v. The State 2018 SCMR 506; Lal Khan v. The State 2006 SCMR 1846; Muhammad Ilyas and another v. Ameer Ali and another 2020 SCMR 305; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Zafar v. The State and others 2018 SCMR 326; Muhammad Marsha v. The State 2018 SCMR 772; Ali Gul v. The State 2020 MLD 952; Zar Bahadur v. The State 1978 SCMR 136; Zahoor Ahmed v. The State 2007 SCMR 1519; Ali Sher v. The State and 3 others PLD 1980 SC 317 and Muhammad Ehsan v. The State 2006 SCMR 1857 ref.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay in lodging the FIR---Scope---Accused was charged for committing murder of daughter of complainant/wife of accused by causing hatchet blows---Record showed that firstly the dead body was shifted to the hospital and thereafter, the complainant after leaving the dead body at hospital went to police station and lodged the FIR---Explanation furnished by the complainant appeared to be plausible---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

(c) Criminal trial---

----Witness---Interested and related eye-witness--- Reliance--- Scope--- Mere relationship of an eye-witness with the deceased or complainant did not declare the eye-witness as interested, if his/her evidence was confidence inspiring and corroborated by independent source.

Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence--- Contradiction in the statement of complainant--- Scope---Accused was charged for committing murder of daughter of complainant/wife of accused by causing hatchet blows---Allegedly, complainant, in his cross-examination, had contradicted his statement by stating that he did not see the accused giving hatchet blows to his daughter, however, it was not so, even otherwise, evidence of the two eye-witnesses was also consistent, straight forward, confidence inspiring and their presence at the time of incident had not been disputed by the defence, therefore the evidence of the both the eye-witnesses was sufficient to hold the accused guilty of the charge---All the prosecution witnesses supported the case of the prosecution on all aspects of the case and the defence could not point out any discrepancy or infirmity to dent the case of the prosecution---Defence also failed to prove that there was any enmity because of which the prosecution witnesses deposed falsely against the accused---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence--- Statement of single witness--- Scope--- Conviction in murder case, could be based on the testimony of a single witness, if the court is satisfied that the witness is reliable. [p. 838] G

Niaz-ud-Din and another v. The State and another 2011 SCMR 725 rel.

Badal Gahoti for Appellant.

Ms. Safa Hisbani, Assistant Prosecutor General, Sindh for the State.

Date of hearing: 4th December, 2020 .

JUDGEMENT

ABDUL MOBEEN LAKHO, J.---Through this Criminal Jail Appeal, the appellant has assailed the legality and propriety of judgment dated 25.04.2013 passed by learned Sessions Judge, Umerkot in Sessions Case No.25/2012 (Re: The State v. Mano), arisen out of Crime No.28/2012 registered under section 302, P.P.C. at Police Station Umerkot, whereby he was convicted under section 302(b), P.P.C. as Tazir and sentenced to suffer imprisonment for life and to pay as compensation of Rs.1,00,000/- (Rupees One Lac) as required under section 544-A, Cr.P.C. to the legal heirs of deceased.In case of non-payment of compensation amount, he was ordered to suffer S.I. for six (06) months more. Appellant was extended the benefit of section 382-B, Cr.P.C.

1. Brief facts of the prosecution case as per FIR are that, complainant Premo Kolhi lodged FIR on 13.03.2012 at 1350 hours at Police Station Umerkot, alleging therein that he is Hari of Sher Khan Samejo, his daughter deceased Meena aged about 19 years was married with Manoo Kolhi about 8 months back. It is further alleged in the FIR that deceased Meena and Mano (present appellant) were residing with complainant in a separate house; accused Mano was also Hari of Sher Khan Samejo. The complainant further alleged that in exchange of marriage of his daughter Meena, Radhan was also married with his son Walho Kolhi but she (Radhan) was residing with her parents. On 13.03.2012, in the morning, he, his brother Sono, his son Lakho and Soomar son of Ratno were harvesting oil seed crop, while Mano and Meena were harvesting sun flower crop in their field. At about 09:30 a.m., they heard cries in sun flower crop and saw the accused Mano causing, hatchet blows to his daughter Meena. It is further alleged in the FIR that he, Sono, Lakho and Soomar rushed there and saw that Mano caused hatchet blows on the neck of his daughter and then ran away along with hatchet. They saw that due to injuries blood was oozing and Meena died at the spot. The complainant narrated the incident to his Zamindar Sher Khan Samejo and brought the dead body at hospital, from where he went to P.S. and lodged FIR against above named accused.

2. During investigation, the Investigating Officer recorded 154, Cr.P.C. statement of the complainant prepared inquest report; visited the place of wardat in presence of mashirs, and secured blood stained earth and sealed in presence of mashirs, arrested the accused, recovered the hatchet and prepared such mushirnamas. 161, Cr.P.C. statements of the PWs were recorded. Crime weapon, blood stained earth and clothes of deceased were sent to chemical examiner for examination and received positive report. After usual investigation challan was submitted against the accused under section 302, P.P.C.

3. Trial Court framed charges against the accused at Ex.3, to which he pleaded not guilty and claimed to be tried.

4. At trial, the prosecution in order to prove its case .has examined following witnesses:

(i) Complainant Premo (PW-01) at Ex.5, who produced FIR at Ex.6, (ii) Lakho (PW-02) at Ex.7, (iii) Sono (PW-03) at Ex.8, (iv) Dr. Leela Pardeep (PW-04) at Ex.10, who produced post mortem report at Ex.12, (v) Tapedar Mehtab (PW-05) at Ex.20, who produced sketches at Ex.21-A to 21-C and letter at Ex.22 and (vi) IO/ASI Qurban Ali Rajar (PW-06) examined at Ex.23, who produced mashirnama of dead body, Danishtnama, inquest report, memo. of place of incident, memo. of arrest and recovery, mashirnama of recovery of clothes and report of chemical examiner at Exs. 24 to 30.

Thereafter, learned State Counsel closed the prosecution side vide his statement at Ex.31.

1. Trial Court recorded statement of accused under section 342, Cr.P.C. at Ex.32, in which he denied the prosecution allegations and claimed his innocence. However, he did not examine himself on Oath nor led any evidence in his defence.

2. After hearing the learned counsel for the parties and assessment of evidence available on record, the trial court convicted the accused under section 302(b), P.P.C. and sentenced him as stated above vide impugned judgment dated 25.04.2013.

3. Mr. Badal Gahoti, learned counsel for appellant contended that appellant is innocent and has been falsely implicated in this case; that prosecution case is full of doubts and infirmities, as such, accused deserves benefit of doubt; that all the PWs are interested and related to each other; that no independent person was examined to prove the charge against accused; that prosecution has failed to show the motive behind the alleged incident; that sketch of the place of incident does not show that eye-witnesses were present at the place of incident which creates doubt in the prosecution story; that as per FIR Soomar was also present along with other eye-witnesses at the place of incident however, he was given-up by the prosecution without any reason; that nothing has been recovered from the possession of present accused/appellant; that there was unexplained delay in lodging of the FIR. He lastly prayed for acquittal of the appellant from the charge. In support of his contentions, learned counsel has placed on record the case law reported as Muhammad Asif v. The State (2008 SCMR 1001), Liaquat Ali v. The State (2008 SCMR 95), Muhammad Imran v. The State (2020 SCMR 857), Abdul Jabbar and another v. The State (2019 SCMR 129), Tarique Parvez v. The State (1995 SCMR 1345), G. M. Niaz v. The State (2018 SCMR 506), Lal Khan v. The State (2006 SCMR 1846), Muhammad Ilyas and another v. Ameer Ali and another (2020 SCMR 305), Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550), Zafar v. The State and others (2018 SCMR 326), Muhammad Marsha v. The State (2018 SCMR 772) and Ali Gul v. The State (2020 MLD 952).

4. Conversely, Miss Safa Hisbani, learned A.P.G. Sindh while supporting the impugned judgment submits that prosecution has fully established its' casse beyond any reasonable doubt by producing consistent/convincing and reliable evidence and the impugned conviction and sentence awarded to the appellant is the result of proper appreciation of evidence brought on record which needs no interference by this Court. She further contended that no major contradiction is brought on record to discard the evidence of prosecution witnesses. Lastly she prayed for dismissal of this appeal. In support of his contentions, she relied upon the cases reported as Zar Bahadur v. The State (1978 SCMR 136), Zahoor Ahmed v. The State (2007 SCMR 1519), Ali Sher v. The State and 3 others (PLD 1980 Supreme Court 317) and Muhammad Ehsan v. The State (2006 SCMR 1857).

5. I have heard the learned counsel for appellant, learned A.P.G. for the State and perused the evidence so brought on record.

6. In order to prove the unnatural death of Sht. Meena, prosecution has examined Dr. Leela Pardeep at Exh.10. W.M.O stated that on 13.03.2012, dead body of a girl aged about 20 years was referred to her by S.H.O. Police Station Umerkot for conducting the postmortem examination and report. The dead body was identified by Premo son of Mavji and Sono son of Mavji (father and uncle of deceased respectively). She started postmortem at 03.30 p.m. and finished the same at 05.30 p.m. On same date during postmortem lady Doctor found following injuries:-

INJURIES:-

1. Incised wound 20.0 cm x 6.0 cm infront of neck at the level of hyoid bone, cutting major blood vessels of left side of trachea and oesophagus and cutting vertebral column at the level of C-4 and C-5.

2. Incised wound 8.0 cm x 1.0 cm on muscle deep on left side of neck, above injury No.01.

3. Incised wound 5.0 cm x 1.0 cm on left side of neck skin deep, above injury No.02.

4. Amputation of left little finger at first inter phalycal joint.

From external as well as internal examination of the deceased body, Doctor was of the opinion that the cause of death was haemorrhagic shock due to bleeding from the injuries noted above, caused by sharp cutting object. The probable time elapsed between injuries and death was instant, while time between death and postmortem was about 06 to 08 hours. After examination she prepared postmortem report which she produced as Ex.12. In the cross-examination, integrity of doctor has not been questioned. I, therefore, hold that Sht. Meena died an unnatural death as described by the MLO.

1. The prosecution case primarily structured upon the ocular testimony of complainant/PW-1 Premo, PW-2 Lakho and PW-3 Sono. According to complainant/P.W-01 Premo, who deposed that on 13.03.2013, he along with Soomar, Sono and Lakho was busy in cutting the Toorio crop in the lands of Sher Khan Samejo while present accused with his wife Sht. Meena (now deceased), who was his daughter was busy in sun-flower field near Toorio crop. At about 09.30 a.m., he heard the hue and cry of his daughter Sht. Meena, upon which all of them rushed there and saw the present accused (appellant) causing hatchet blows to his daughter Sht. Meena. On seeing them accused made his escape good and they saw Sht. Meena lying dead in a pool of blood. Statement of the complainant was recorded under section 154, Cr.P.C. which was incorporated in FIR bearing No.28/2012 for offences under section 302, P.P.C. at Police Station Umerkot. In cross-examination he denied the suggestion that he was deposing falsely.

2. PW-2 Lakho who is also the eye-witness of incident narrated the episode of incident in the same manner as stated by complainant/PW-1 Premo in his evidence and he denied the suggestion that someone else had committed the murder of his sister and they have falsely implicated the present accused. He also denied the suggested that he had strained relations with accused.

3. PW-3 Sono who is also the eye-witness of the incident has narrated the same story as narrated by complainant and PW Lakho. He however, denied the suggested that he had strained relations with accused.

4. A careful analysis of the prosecution evidence furnished by the eye-witnesses has corroborated each other on all important aspects of the case i.e. the date, time and place of occurrence as well as the mode and manner in which the occurrence took place. They are also consistent on all the material aspects of the case and their evidence had remained unshaken and un-shattered. Presence of eye-witnesses is established at the place of occurrence because the above PWs being natural witnesses were doing labour at the crop besides the crop where the accused and deceased Sht. Meena were doing labour. All the three eye-witnesses remained consistent and firm regarding their stance qua the role of the accused/ appellant in perpetrating the alleged offence.

5. The deceased had been done to death by the appellant by causing hatchet injuries on her vital part body i.e. neck. The appellant had been arrested by the police on the same day i.e. 13.03.2012 and recovered one blood stained hatchet which was sent for analysis to the chemical examiner and the report was in positive. The injuries described by the Doctor were caused by sharp cutting object. The submission of the defence counsel regarding there being a delay in registration of the FIR is concerned, it is observed that firstly the dead body was shifted to the hospital and thereafter, the complainant after leaving the dead body at Hospital went to police station and lodged the FIR. Explanation furnished by the complainant appears to be plausible. Coming to the submission of learned counsel for appellant regarding the witnesses being interested due to their relationship with the complainant and deceased is concerned, the same is no ground to discard their evidence as it is a well-established principle of law that mere relationship of an eye-witness with the deceased or complainant does not declare the eye-witness as interested, if his/her evidence is confidence inspiring and corroborated by an independent source. In this respect, reliance is placed on the case law reported as Nasir Iqbal alias Nasra and another v. The State (2016 SCMR 2152), wherein the Hon'ble Apex Court has observed as under:

"The testimony of both the eye-witnesses is confidence inspiring and from the facts and circumstances of the case, as mentioned above, they cannot in any manner be considered to be chance witnesses. Moreover, mere relationship or enmity is not always enough to declare a witness to be partisan or interested witness when his testimony is confidence inspiring and trustworthy. The motive of the instant occurrence is fully established at least to the extent of appellant Muhammad Ashraf being accused in the previous murder case of Naveed Akram who was extending threats to the complainant party to effect compromise and being proclaimed offenders such like modus operandi are usually adopted to clear themselves and to get rid of the murder cases and in the given circumstances the prosecution has amply succeeded to establish motive part of occurrence at least against appellant Muhammad Ashraf. Further we have observed that the medical evidence corroborate the ocular account. Recoveries have been effected which also corroborate the prosecution version. The parties were known to each other and FIR was promptly lodged all this rules out any possibility of substitution or consultation to falsely rope in or involve the accused persons.".

1. Learned defence counsel attempted to argue that no reliance could be placed upon the evidence of complainant who in his cross-examination has contradicted his statement by stating that he did not see the accused giving hatchet blows to his daughter. It is not so, even otherwise, evidence of the two eye-witnesses namely Lakho and Sono is also consistent, straight forward, confidence inspiring and their presence at the time of incident has not been disputed by the defence, therefore the evidence of the both the eye-witnesses is sufficient to hold the appellant guilty of the charge. In a murder case conviction can be based on the testimony of a single witness, if the Court is satisfied that he is reliable. In the case reported as Niaz-ud-Din and another v. The State and another (2011 SCMR 725), the Honourable Supreme Court has held as under:

2023 Y L R 845

[Sindh]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

MUHAMMAD IMRAN---Appellant

Versus

STATE---Respondent

Criminal Appeal No. 500 of 2019 and Confirmation Case No. 22 of 2019, decided on 19th January, 2021.

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

----Ss.302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Motive not proved---Scope---Accused charged for committing murder of the friend of the complainant by firing---Complainant in his evidence had deposed that there was partnership in between accused and deceased in the business of mobile shop, but no independent evidence in that regard had been produced at trial---Complainant and a witness were eye-witnesses of the incident but their evidence with regard to the motive was contradictory to each other---Motive, in the FIR, had been set up that the accused demanded Rs.500/- from the deceased per day for the work---When deceased gave Rs.200/- to the accused, he refused to receive it and demanded Rs.500/- but on that point eye-witness had contradicted the complainant and deposed that he was with the complainant and deceased at the time of incident but he did not hear the conversation of deceased and accused---Eye-witness had stated that it was night time, he did not see the notes---Investigating Officer had also failed to collect independent piece of evidence with regard to the motive during investigation---Circumstances established that motive set up in FIR had not been established at trial---Death sentence of the accused was reduced to imprisonment for life in circumstances---Appeal against conviction was dismissed with said modification in sentence.

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

----Ss.302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Ocular account corroborated by medical evidence---Scope---Accused was charged for committing murder of the friend of the complainant by firing---Record showed that evidence of the eye-witnesses was quite reliable and trustworthy---Mere relationship of the complainant with the deceased was no ground to reject his testimony---Even otherwise, complainant had no motive to falsely implicate the accused in the case---Evidence of another eye-witness was also reliable for the reason that he was independent witness---Evidence of both the eye-witnesses on all the material points was consistent---Ocular evidence was corroborated by the medical evidence, as such, no further corroboration was required---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, due to some mitigating circumstances, his death sentence was reduced to imprisonment for life---Appeal against conviction was dismissed with said modification in sentence.

Amjad Shah v. State PLD 2017 SC 152; Ghulam Mohy-ud-Din alias Haji Babu and others v. The State 2014 SCMR 1034 and Bakhat Munir v. The State 2020 SCMR 588 ref.

Asim v. The State 2005 SCMR 417 rel.

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

----Ss. 302(b) & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Quantum of sentence---Mitigating circumstances---Scope---Accused was charged for committing murder of the friend of the complainant by firing---First Information Report mentioned that occurrence in issue had taken place on account of a trivial verbal altercation between the accused and the deceased over the payment of Rs.200/500, however, it was matter of record that deceased had telephoned to accused for receiving the amount, which clearly showed that accused and deceased had good working relationship---No previous enmity existed between the parties---Circumstances of the case unequivocally suggested that the occurrence had taken place at the spur of the moment without any premeditation on the part of the accused---Motive asserted by the prosecution was not proved at trial---Accused fired multiple fires upon deceased as accused demanded Rs.500/-from deceased and deceased gave Rs.200/- could not be believed----Circumstances show that something else had happened prior to the occurrence which was suppressed by both the parties, so immediate cause of occurrence was shrouded in mystery---If the prosecution failed to prove the motive for the murder, the alternate sentence of life imprisonment as opposed to the death penalty would be justified---Appeal against conviction was partly allowed and death sentence of the accused was reduced to imprisonment for life.

Bakht Munir v. The State and another 2020 SCMR 588; Amjad Shah v. State PLD 2017 SC 152 and Zeeshan Afzal v. The State 2013 SCMR 1602 rel.

(d) Criminal trial---

----Motive---Scope---If the prosecution asserts a motive but fails to prove the same, then such failure on the part of the prosecution may react against a sentence of death passed against a convict on the charge of murder.

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.

Asadullah Memon for Appellant.

Mohammad Iqbal Awan, Deputy Prosecutor General, Sindh for Respondents.

2023 Y L R 863

[Sindh (Sukkur Bench)]

Before Aftab Ahmed Gorar, J

ABDUL MANAN alias NISAR---Appellant

Versus

MEER MUHAMMAD alias MEER and 3 others---Respondents

Criminal Acquittal Appeal No. S-212 and M.A. No. 12094 of 2017, decided on 8th February, 2021.

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

----Ss. 457, 459 & 380---Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment, hurt caused whilst committing lurking house-trespass or house-breaking, theft in dwelling house---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Accused were charged, that, they, while armed with deadly weapons committed lurking house trespass and attempted to commit qatl-i-amd by causing injuries to son and daughter-in-law of the complainant and also committed theft of cash, gold ornaments and other valuable articles---Admittedly FIR was belated by one month, for which no plausible explanation had been furnished by the complainant, as such element of consultation and deliberation could not be ruled out---Accused persons were identified in the light of bulbs, which was always treated as a weakest type of evidence---Even in the mashirnama of place of occurrence, it was nowhere mentioned as to whether the electricity bulbs were fixed there and the same were lightening or not---Alleged offence took place at 11.30 p.m. but the Medical Officer in his evidence had clearly disclosed that injured arrived at hospital on the next day at 12.00 noon and the probable duration of injuries was about one or two hours and the injuries were fresh, as such it had rightly been held by Trial Court that incident had not taken place at night time and/or in the manner as alleged by the complainant and witnesses---Glaring contradictions in the evidence of complainant and witnesses were found on material points including reaching of injured to hospital, which had been rightly discussed and considered by the Trial Court while acquitting the accused being fatal to the prosecution---Reasonable doubt had been created by the present respondents in prudent mind and its benefit had rightly been extended to him by the Trial Court---Appeal against acquittal was dismissed accordingly.

(b) Appeal against acquittal---

----Presumption of double innocence---Scope---Presumption of double innocence of accused is attached to the order of acquittal.

Zaheer Din v. The State 1993 SCMR 1628 and Zulfiqar Ali v. Imtiaz and others 2019 SCMR 1315 rel.

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

----S. 417---Appeal against acquittal---Scope---Acquittal once granted could not be recalled merely on the possibility of a contra view---Unless, impugned view was found on fringes of impossibilities, resulting into miscarriage of justice, freedom could not be recalled.

Saeed Ahmed Chachar for PW so also Brother/Legal Heir of Appellant/ Complainant.

Allah Bux Gabol for Respondents Nos.1 to 3.

Khalil Ahmed Maitlo, Deputy P.G. for the State.

2023 Y L R 915

[Sindh]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

KHALID AHMED---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 869 and Confirmation Case No. 25 of 2019, decided on 26th February, 2021.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Accused was charged for committing murder of the sister of the complainant by inflicting churri blow---Ocular account supported by medical evidence---Scope---Record showed that place of occurrence was admittedly house of the accused and deceased---Eye-witness/ sister-in-law of the complainant was a natural witness---After her examination-in-chief, she was subjected to lengthy cross-examination, but nothing in favour of accused came on record---Said witness had no motive to falsely implicate the accused in the case---Statement of said witness was confidence inspiring---Evidence of said witness was also corroborated by the medical evidence---All the injuries were found to have been caused by sharp cutting weapon---Appellant was only accused who caused said injuries to the deceased daughter---Accused was seen by the said eye-witness coming out from the room in which accused committed murder of his daughter, his clothes were stained with blood and was armed with churri---Eye-witness had no enmity whatsoever with the accused to falsely implicate him in the murder of his daughter---Evidence of said witness was sufficient to prove the case of prosecution---Evidence of said witness was supported by complainant and other witnesses---Evidence of said witness was also fully corroborated by medical evidence---Trial Court had rightly relied and appreciated the evidence---Medical Officer, who carried out post-mortem examination of deceased fully supported the evidence of eye-witness, which showed that deceased, sustained three stab wounds---Circumstances established that the prosecution had succeeded in proving its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Manzoor Ahmed Shah and others v. The State and others 2019 SCMR 2000; Juma Khan v. The State 2020 PCr.LJ 1603; Momin Khan v. The State and another 2020 PCr.LJ 1322 and Hazoor Bakhsh v. Waddon and 3 others 1980 SCMR 979 ref.

Muhammad Ehsan v. The State 2006 SCMR 1857 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Non-recovery of crime weapon---Scope---Accused was charged for committing murder of the sister of the complainant by inflicting churri blow---Crime weapon/churri could not be recovered from the accused, as he absconded away after commission of the offence---Challan was submitted against accused under S. 512, Cr.P.C.---Circumstances established that the prosecution had succeeded in proving its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Minor contradictions in the statements of witnesses---Effect---Accused was charged for committing murder of the sister of the complainant by inflicting churri blow---Record showed that the evidence of other witnesses was also consistent on all material particulars of the case, however, there were some contradictions in their evidence---Such contradictions were minor in nature and not material and certainly not of such materiality so as to effect the prosecution case---Circumstances established that the prosecution had succeeded in proving its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Zakir Khan v. The State 1995 SCMR 1793 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Circumstantial evidence---Scope---Accused was charged for committing murder of the sister of the complainant by inflicting churri blow---Evidence of sole eye-witness provided a chain of events/circumstances which connected the accused with commission of the offence---Accused failed to produce any evidence in his defence---Accused in his statement recorded under S. 342, Cr.P.C. failed to explain the murder of unmarried daughter in his house---Record transpired that accused prior to the commission of the murder of the deceased had also committed murder of his wife---Chain of circumstantial evidence was firm and continuous, leaving no margin for the hypothesis of innocence of the accused---Rope of circumstantial evidence, adduced by the prosecution, tied the dead body of the deceased girl with the neck of the accused---Occurrence in the case, as per prosecution case, took place at 02.00 p.m. inside the room of the house of the accused---Eye-witness had seen the accused while taking his daughter/deceased when she was preparing meals to the room and at the time of killing her she was raising cries and was calling eye-witness present in the same house for rescue when accused committed her murder and there was silence in the room---Accused came out of the room and eye-witness saw, his clothes blood stained, churri/knife was in his hand---Even otherwise, attack on the deceased which led to her death was brutal, barbaric and frenzied, causing 03 incised wounds on vital parts of her body---Circumstances established that the prosecution had succeeded in proving its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Shamshad Ali v. The State 2011 SCMR 1394 and Tariq Iqbal v. State 2017 SCMR 594 rel.

Muhammad Farooq for Appellant.

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

Muhammad Iqbal Awan, Deputy Prosecutor General, Sindh.

Present in person for the Complainant.

2023 Y L R 943

[Sindh]

Before Amjad Ali Sahito and Zulfiqar Ali Sangi, JJ

ROSHAN ALI SHAIKH and others---Petitioners

Versus

PAKISTAN through Secretary, Ministry of Law and others---Respondents

Constitution Petitions Nos. D-4295, 4429 and 4914 of 2020, decided on 9th November, 2020.

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

----Ss. 497 & 498---"Pre-arrest" and "post arrest" bail---Scope---Principles governing pre-arrest bail and post arrest bail are quite different---Mere dismissal of pre-arrest bail of accused is not a sufficient reason to deprive him with concession of post arrest bail.

Muhammad Aslam v. The State PLD 2015 SC 41; Syed Ali Raza and others v. Federation of Pakistan through Secretary Ministry of Law, Islamabad and others (Civil Petitions Nos. 194, 298 and 304 of 2018); Lt. Gen. (Rtd.) Fazlehaq v. The State 1989 SCMR 1724 and Muhammad Hussain v. The State 1982 SCMR 227 rel.

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

----S. 9(a)(vi) & (b)---Criminal Procedure Code (V of 1898), S. 497 (2)---Constitution of Pakistan, Art.199---Constitutional petition---Bail, grant of---Misuse of authority---Case of further inquiry---Reference, filing of---Deeper appreciation of evidence--- Scope---Petitioners were arrested for misusing their authorities in allotment of state land and causing loss to government exchequer---Validity---Amount calculated in reference was Rs.3,607,200/- which was recovered with the approval of Senior Member Board of Revenue---Such communication was made by Secretary Land Utilization Department of Government of Sindh---Mutation entry in record of rights was incorporated, pursuant to the orders of Senior Member, Board of Revenue---Karachi Metropolitan Corporation allotted 2322 plots to private persons/industrialist and Board of Revenue granted 149 acres of land to individuals---Was yet to be determined during recording of evidence before Trial Court that land automatically stood resumed to Provincial Government or when payment was made and entries were kept in record of rights and payments were made along with fine---Government of Sindh was keen to resolve the issue and reference had already been filed---Accused persons were no more required for further inquiry---At bail stage only tentative assessment was to be made and deeper appreciation of evidence was not permissible---Accused persons had made out their case of further inquiry as envisaged under S. 497(2), Cr.P.C.---Bail was allowed in circumstances.

Ramesh M. Udeshi v. State 2005 SCMR 468; Ramesh M. Udeshi v. State 2005 MLD 1854; Malik Salah-Ud-Din Dogar v. The State 2006 YLR 1468; The State v. Idrees Ghauri 2008 SCMR 1118; Mansur-ul-Haque v. Government of Pakistan PLD 2008 SC 166; State v. Anwar Saif Ullah Khan PLD 2016 SC 276, Muhammad Iqbal v. State 2017 PCr.LJ 674; Hamid Saeed Kazmi v. State 2017 PCr.LJ 854; Abid Wali Khoso v. National Accountability Bureau 2018 PCr.LJ 1607; Qamar-Ul-Islam v. National Accountability Bureau 2019 PCr.LJ 582; Umar Mukhtar v. The State 2020 MLD 696; Aftab Ahmed Khan Sherpao v. The State PLD 2001 Pesh. 80; Mir Munawar Ali Talpur v. State PLD 2003 SC 46; Ramesh Udeshi v. The State PLD 2004 Kar. 224; Syed Ali Raza v. Federation of Pakistan and others Civil Petitions 194 of 2018 and other connected matters (SC); Hafiz Mian Muhammad Nauman v. Director General NAB 2020 PCr.LJ 289; Muhammad Akbar v. State PLD 1968 SC 281; Abdul Haleem v. State 1982 SCMR 988; Muhammad Ashraf Khan v. Province of Sindh 2017 YLR 288; M.D Bank of Punjab v. Syed Shahzad Hussain 2006 SCMR 1023; Abdul Majeed Zafar v. Governor of the Punjab 2007 SCMR 330; Asim Khan v. Zahir Shah 2007 SCMR 1451; Justice Khurshid Anwar Bhinder v. FOP PLD 2010 SC 483; Ali Muhammad v. The State PLD 2010 SC 623; Karachi Cooperative Housing Societies Union v. Government of Sindh 2003 YLR 1513; Khalilullah Jan Sarhandi v. Chairman, NAB 2008 PCr.LJ 967; Abdul Qadir Memon v. Director General, NAB 2019 YLR 689; Muhammad Shahbaz Sharif v. National Accountability Bureau 2020 YLR 1571; Sheikh Imran-ul-Haque v. Federation of Pakistan PLD 2020 Isl. 177; Hassan Jameel Ansari v. National Accountability Bureau 2012 YLR 2809; Muhammad Shahbaz Sharif v. National Accountability Bureau 2020 YLR 1370; C.P. 7714 of 2019 at Paragraph 7 (P.313 of file-Relevant at 323), Salman Rafique v. National Accountability Bureau PLD 2020 SC 456; Anwar Saifullah Khan v. The State 2001 SCMR 1040; Rafiq Haji Usman v. Chairman, NAB 2015 SCMR 1575; Muhammad Subtain Khan v. National Accountability Bureau PLD 2020 Lah. 191; Mukaram v. State 2020 SCMR 956; Muhammad Faisal v. State 2020 SCMR 971; Sikandar A. Karim v. State 1995 SCMR 387; Muhammad Faisal v. State 2020 SCMR 971; Civil Petitions 194 of 2018 and other connected matters (SC), Shahadat Ali Khan v. State 1984 PCr.LJ 2779A; Ali Athar v. State 2013 PCr.LJ 487; The State v. Idrees Ghauri 2008 SCMR 1118; 1972 PCr.LJ 1130; Jamot Ghulam Muhammad and 3 others v. State and another PLD 1971 Kar. 937; Mazhar Hakeem v. The State 1985 PCr.LJ 596; Badaruddin v. Mehr Ahmad Raza PLD 1993 SC 399, Crl. Accountability Appeal 68 of 2018 and other connected appeals (dated 08.10.2019) at Paragraphs 16, 17, 18 (DB/SHC)(PC); Dr. Allah Nawaz A. Qazi v. The State 2008 SCMR 196; Muhammad Nawaz v. The State through Chairman, NAB, Islamabad and others PLD 2008 SC 438; Shahadat Ali Khan and others v. The State 1984 PCr.LJ 2776; Waryam v. Province of Punjab, through the Collector District, Faisalabad and another 2006 MLD 1290, Nusrat Hussain Shah v. The Chairman, National Accountability Bureau, through NAB(K)/Sindh 2019 MLD 680 and Rasool Bux Sohi v. Federation of Pakistan through Chairman NAB and another 2018 PCr.LJ Note 10 ref.

Mukaram v. The State 2020 SCMR 965 and Jahzeb Khan v. The State through A.G. KPK and others in Criminal Petition No.594 of 2020 rel.

Makhdoom Ali Khan, Haider Ali Khan and Barrister Shaheer Roshan Shaikh for the Petitioner (in C. Ps. Nos. D-4295, D-4429 and 4914 of 2020).

Abdul Sattar Awan, Special Prosecutor NAB along with S. M. Rizwanullah, I.O. NAB for Respondents (in C. Ps. Nos. D-4295, 4429 and 4914 of 2020).

Habib Ahmed and Ali Afsar Khan for Petitioner (in C.P. No. D-4429 of 2020).

Abdul Sattar Awan, Special Prosecutor NAB along with S.M. Rizwanullah, I.O. NAB for Respondents (in C.P. No. D-4429 of 2020).

Shoukat Hayat and Abdul Hafeez Sindhu for Petitioner (in C.P. No. D-4914 of 2020).

Abdul Sattar Awan, Special Prosecutor NAB along with S.M. Rizwanullah, I.O. NAB for Respondents (in C.P. No.D-4914 of 2020).

2023 Y L R 969

[Sindh]

Before Muhammad Junaid Ghaffar, J

SABA FARUQUI---Plaintiff

Versus

GHAZALA AZIZ through duly constituted Attorney and 3 others---Respondents

Suit No. 1705 of 2016, C.M.As. Nos. 4329 of 2018, 1648 of 2017 and 10884 of 2016, decided on 16th April, 2018.

Civil Procedure Code (V of 1908)---

----O.XI, R.18---Specific Relief Act (I of 1877), Ss.12, 42 & 54---Suit for specific performance of agreement, declaration and injunction--- Inspection of documents--- Principle--- Defendant sought permission to inspect documents annexed by plaintiffs with plaint---Validity---Written statement was already filed by defendants and there was admission regarding entering into some agreement or arrangement in respect of suit property---Documents of which inspection was sought as those were not signed or executed, was not of much relevance---High Court declined to exercise its discretion to entertain such application as it was an attempt to delay expeditious disposal of suit at trial---Matter was ripe for evidence, as proposed issues had been filed and after settlement of issues parties were required to file documents in original on which they intend to rely and lead evidence---If plaintiffs would fail to mention such documents for its evidence, then matter would end whereas if any reliance was placed on any such document, then its admissibility could be questioned by defendants and the matter would then be decided by Court in accordance with law---Defendants were at liberty to contest and agitate such issue at the time of leading of evidence by parties and could also confront plaintiffs to that effect---Application was dismissed in circumstances.

Abdul Hamid v. Malik Karam Dad PLD 1966 (W.P.) Lah. 16; Bank of Credit and Commerce International (Overseas) Ltd. v. Karachi Tank Terminal Ltd. PLD 1988 Kar. 261 and Abdul Sattar Shah Zaidi v. University of Karachi PLD 1989 Kar. 71 ref.

Yawar Farooqui, Owais Sarki holding brief for Jehanzeb Awan and Ahmed Ali Hussain holding brief for Abid Zuberi for Plaintiff.

Afzal Ahmed for Defendant No.1.

Syed Noman Zahid Ali for Defendant No.2.

2023 Y L R 987

[Sindh (Larkana Bench)]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

SADIQUE SABZOI---Petitioner

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-43 along with Criminal Confirmation Case No. D-08 of 2016, decided on 18th February, 2021.

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

----Ss. 302(b), 457, 459, 460, 395, 337-A(i), 337-F(i), 337-H(ii), 148 & 149---Qatl-i-amd, lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment, hurt caused whilst committing lurking house trespass or house breaking, all persons jointly concerned in lurking house trespass or house breaking by night punishable for qatl or hurt caused by one of them, dacoity, shajjah-e-madihah, ghayr-jaifah-damiyah, rash or negligent act to endanger human life or personal safety of others, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Delay of twenty two hours in lodging the FIR---Effect---Accused was charged that he along with co-accused persons while armed with deadly weapons entered into the premises of complainant party for stealing cattle, complainant party challenged them, accused party made firing upon complainant party, due to which, father and brother of complainant died while other sustained injuries---First Information Report was registered with the delay of twenty two hours---Distance of place of incident was about 8/9 Kilometres from the police station---Record reflected that before the FIR police conducted some investigation and prepared mashirnamas---Inquest report showed that police received information at 09.00 a.m. and thereafter from 09.00 a.m. to 09.30 a.m. mashirnamas of inspection of dead bodies and injuries of injured person were prepared till that time complainant had not disclosed the names of accused persons to the police nor the alleged incident was disclosed before the police as to in what manner the incident took place, which created very serious doubt in the case of prosecution therefore, consultation, deliberation and false implication could not be ruled out---Evidence showed that they took foot prints of accused persons---Tracker dogs were called and thereafter FIR of the present incident was registered, which opened room that FIR was registered after consultations and deliberations---If the complainant knew who the accused were as he had recognized them and where they lived then what was the need for tracker dogs to take them to the home of the accused---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.

Mir Hassan v. The State 2020 YLR 2514 rel.

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

----Ss. 302(b), 457, 459, 460, 395, 337-A(i), 337-F(i), 337-H(ii), 148 & 149---Qatl-i-amd, lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment, hurt caused whilst committing lurking house trespass or house breaking, all persons jointly concerned in lurking house trespass or house breaking by night punishable for qatl or hurt caused by one of them, dacoity, shajjah-e-madihah, ghayr-jaifah-damiyah, rash or negligent act to endanger human life or personal safety of others, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Delay of seven hours in conducting post-mortem---Effect---Accused was charged that he along with co-accused persons while armed with deadly weapons entered into the premises of complainant party for stealing cattle, they challenged them, accused party made firing upon complainant party, due to which, father and brother of complainant died while other sustained injuries---Record reflected that the post mortems of the deceased were conducted from 10.30 a.m. to 11.30 a.m. whereas the incident took place at 03.00 a.m. (night)---Delay of seven hours in the autopsy was not reasonably explained---Perusal of the medical certificates of both the injured showed that one injured witness reached at hospital at 10.00 a.m., while other injured/complainant came at 10.10 a.m.---Injured received injuries during the night time at 03.00 a.m., but they could not appear at the hospital to save their lives and that fact had not been explained by the injured witnesses including the complainant that where they were from 03.00 a.m. to 10.00 a.m., which created very serious doubt about their presence at the spot and about the manner in which offence was actually committed---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.

Sufyan Nawaz and another v. The State and others 2020 SCMR 192 rel.

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

----Ss. 302(b), 457, 459, 460, 395, 337-A(i), 337-F(i), 337-H(ii), 148 & 149---Qatl-i-amd, lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment, hurt caused whilst committing lurking house trespass or house breaking, all persons jointly concerned in lurking house trespass or house breaking by night punishable for qatl or hurt caused by one of them, dacoity, shajjah-e-madihah, ghayr-jaifah-damiyah, rash or negligent act to endanger human life or personal safety of others, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Unnatural conduct of witness---Effect---Accused was charged that he along with co-accused persons while armed with deadly weapons entered into the premises of complainant party for stealing cattle, they challenged them, accused party made firing upon complainant party, due to which, father and brother of complainant died while other sustained injuries---In the present case, it had come in the evidence of the prosecution witnesses that the foot prints were tracked with the help of the Medical Officer---Defence version was that the accused was on inimical terms with the Medical Officer, however, it was not believable that such an influential person as Medical Officer would have personally got up in the middle of the night to come out and track foot prints for the complainant who he barely knew---Man of his status would have at best sent someone else on his behalf as the complainant party was not related to him---Such conduct did not appeal to logic, reason, commonsense or natural human conduct based on the particular facts and circumstances of the case---Incident was unseen but after tracking the foot prints through dogs the present accused was implicated---When the prosecution witnesses had identified the culprits at the time of incident then why the foot prints of the accused persons were traced through dogs was not understandable---Said fact of tracking foot prints of the accused through tracker dogs had also not mentioned in the FIR by the complainant---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.

Mushtaq Ahmed alias Mustafa v. The State 2011 YLR 303 rel.

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

----Ss. 302(b), 457, 459, 460, 395, 337-A(i), 337-F(i), 337-H(ii), 148 & 149---Qatl-i-amd, lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment, hurt caused whilst committing lurking house trespass or house breaking, all persons jointly concerned in lurking house trespass or house breaking by night punishable for qatl or hurt caused by one of them, dacoity, shajjah-e-madihah, ghayr-jaifah-damiyah, rash or negligent act to endanger human life or personal safety of others, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Contradictions in the statements of witnesses---Scope---Accused was charged that he along with co-accused persons while armed with deadly weapons entered into the premises of complainant party for stealing cattle, they challenged them, accused party made firing upon complainant party, due to which, father and brother of complainant died while other sustained injuries---Mashirnama of inspection of place of vardat and the recovery, showed that police recovered 16 empties of Kalashnikov, however during cross-examination, the mashir stated that police secured 16 empties of G-3 and no empty cartridge was recovered from the place of incident---Witness had admitted during his cross-examination that Medical Officer had accompanied with foot prints trackers and the accused was arrested on the next date on the intervention of Said Medical Officer---Other witness had also admitted during cross-examination that co-villagers tracked foot prints which led to Katcha side area---Said witness stated that Medical Officer had not accompanied during tracking foot prints of culprits---Said witness further admitted that he was accompanied with co-villagers while tracking foot prints but he did not know that police had arranged tracker dogs---Witness and mashir had given contradictory version as regards to the inspection of the dead bodies by the police---Witness stated that they brought dead bodies to Police Station and police issued a letter for treatment, thereafter dead bodies were referred to hospital for autopsy, while mashir stated that on the day of incident he was called by the police in the house of complainant, where dead bodies of deceased were lying---Complainant in his examination in chief deposed that accused was armed with TT pistol, while injured witness had stated that accused was armed with Kalashnikov---Complainant deposed that due to odd hours of night they stayed in their house and early in the morning they transported dead bodies and injured to police, while injured witness had deposed that after incident the police came within 10/15 minutes at vardat, while mashir had deposed that police reached at the place of incident at 02.00 p.m. in police mobile---Complainant had stated during cross-examination that his father and brother grappled the thieves, however, said fact had not been disclosed by him in the FIR or in his examination-in-chief---Such major contradictions in the evidence of the eye-witnesses would cut the roots of the prosecution case and made it doubtful---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.

Munir Ahmed and another v. The State and others 2019 SCMR 79; Abdul Jabbar and another v. The State 2019 SCMR 129; Amin Ali v. The State 2011 SCMR 323; Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127; Muhammad Irshad and another v. The State 1999 SCMR 1030; Asadullah and another v. The State and another 1999 SCMR 1034; Muhammad Javed v. The State 2016 SCMR 2021; Javaid Akbar v. Muhammad Amjad and Jameel alias Jeela 2016 SCMR 1241; Mureed Hussain v. The State 2014 SCMR 1689; Muhammad Rafiq v. The State 2014 SCMR 1698; Muhammad Shah v. The State 2010 SCMR 1009; Noor Muhammad v. State 2010 SCMR 97; Ishtiaq Masih v. The State 2010 SCMR 1039; Muhammad Akram alias Akrai v. The State 2019 SCMR 610; Haq Nawaz v. The State 2018 SCMR 21; Farooq Khan v. The State 2008 SCMR 917; Muhammad Saleem v. Mullan alias Nooruddin and 3 others 2019 MLD 1732; Khadim Hussain v. The State PLD 2010 SC 669; Nazir Ahmed alias Na'arah v. The State 2008 MLD 273; Hazrat Bilal v. The State and another 2013 PCr.LJ 800; Muhammad Israr v. The State 2017 YLR Note 185; Muhammad Anwar v. The State 2018 YLR 259; Zulifqar Ali v. Sarfraz Ahmed and another 2018 YLR 970; Hamidullah v. The State PLD 2018 Bal. 71 and Yasir and 2 others v. The State 2018 MLD 1014 ref.

Taj Mohammad and 2 others v. The State 2020 PCr.LJ 1693 and

Ghulam Hyder through Superintendent, Central Prison v. The State 2020 YLR 2411 rel.

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

----Ss. 302(b), 457, 459, 460, 395, 337-A(i), 337-F(i), 337-H(ii), 148 & 149---Qatl-i-amd, lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment, hurt caused whilst committing lurking house trespass or house breaking, all persons jointly concerned in lurking house trespass or house breaking by night punishable for qatl or hurt caused by one of them, dacoity, shajjah-e-madihah, ghayr-jaifah-damiyah, rash or negligent act to endanger human life or personal safety of others, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Accused was charged that he along with co-accused persons while armed with deadly weapons entered into the premises of complainant party for stealing cattle, they challenged them, accused party made firing upon complainant party, due to which, father and brother of complainant died while other sustained injuries---Record showed that the complainant and witnesses admitted that direct complaint in respect of the same offence was filed against some other accused persons by showing that police had not registered their FIR as per their verbatim---Complainant and witnesses, during cross-examination, had admitted that complainant party made compromise with those accused persons and thereafter withdrew the direct complaint which clearly showed that facts mentioned in the FIR were concocted---Said point alone made the entire case of prosecution as doubtful---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.

Naseer Ahmed v. The State and others 2020 YLR 488 rel.

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

----Ss. 302(b), 457, 459, 460, 395, 337-A(i), 337-F(i), 337-H(ii), 148 & 149---Qatl-i-amd, lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment, hurt caused whilst committing lurking house trespass or house breaking, all persons jointly concerned in lurking house trespass or house breaking by night punishable for qatl or hurt caused by one of them, dacoity, shajjah-e-madihah, ghayr-jaifah-damiyah, rash or negligent act to endanger human life or personal safety of others, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of weapon of offence---Scope---Accused was charged that he along with co-accused persons while armed with deadly weapons entered into the premises of complainant party for stealing cattle, they challenged them, accused party made firing upon complainant party, due to which, father and brother of complainant died while other sustained injuries---Record showed that the accused was acquitted from the case of recovery of Kalashnikov---During his examination under S.342, Cr.P.C. accused produced the copy of the judgment of his acquittal---Admittedly, no acquittal appeal was filed either by the complainant party or the State as such the said acquittal of the accused attained finality---Recovery of weapon, in circumstances, could not be used against the accused---Acquittal of the accused from the case of recovery of the weapon allegedly used in the incident was fatal to the case of prosecution in the circumstances that the prosecution had not produced the reliable and trustworthy evidence against the accused---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.

Kashif Ali and another v. The State 2019 YLR 1573 rel.

(g) Criminal trial---

----Benefit of doubt---Principle---Even 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.

Habibullah G. Ghouri for Appellant.

Ali Anwar Kandhro, Additional Prosecutor General for the State.

Abdul Rehman Bhutto for the Complainant.

2023 Y L R 1012

[Sindh]

Before Mohammad Karim Khan Agha and Irshad Ali Shah, JJ

ABDUL AZIZ ANSARI and others---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 102 to 105 of 2019 and Special Criminal Anti-Terrorism Jail Appeal No. 27 of 2020, decided on 21st September, 2021.

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

----Ss. 302, 324, 392, 353, 427 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, robbery, assault or criminal force to deter public servant from discharge of his duty, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence---Benefit of doubt---Ocular account---Scope---Accused were charged for committing murder of the brother of the complainant during robbery, when police tried to arrest them, they made firing upon the police party, police party also made firing in retaliation, and thereafter accused were arrested---Ocular account of the incident had been furnished by sole eye-witness---Said witness stated that he heard firing and saw three persons on two motorcycles one of whom made firing on a car and then they robbed the driver---Person in the car came out in an injured condition and he was shifted to hospital---Said witness picked out two accused persons with specific role at an identification parade before the Judicial Magistrate---Witness again picked out another accused with a specific role---According to his evidence, he was a driver but his employer was not examined nor was the location of house or office of employer disclosed---Eye-witness appeared to be a roving taxi driver---Eye-witness, in evidence, stated that there was light/darkness but things were visible---No light bulb was seized from the wardat---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against acquittal was allowed, in circumstances.

Muhammad Umair alias Bhutto v. State 2018 MLD 1196; Jalal Hassan v. Ameer Hamza Awan and 2 others 2019 MLD 1170; Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Khurram Jalali v. The State 2017 PCr.LJ 19; Kanwar Anwaar Ali, Special Judicial Magistrate: In the matter of Criminal Miscellaneous Application No.183 of 2019 of Criminal Appeal No.259 of 2018, decided on 22nd February, 2019; Shakeel and another v. The State 2019 MLD 1554; Hayatullah v. The State 2018 SCMR 2092; Taj Bahadur alias Taji and another v. The State 1997 MLD 1072; Bashir Ahmed v. The State 2004 PCr.LJ 1326; Muhammad Zaman v. The State 2007 SCMR 813; Niaz-ud-Din and another v. The State and another 2011 SCMR 725; Sikandar v. The State and another 2006 SCMR 1786; Jan Mohammad alias Janoo v. The State 2016 YLR 2359; Muhammad Ehsan v. The State 2006 SCMR 1857 and Nazar Hussain and another v. The State PLD 2010 SC 1021 ref.

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

----Ss. 302, 324, 392, 353, 427 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, robbery, assault or criminal force to deter public servant from discharge of his duty, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence---Benefit of doubt---Description of accused not mentioned---Scope---Accused were charged for committing murder of the brother of the complainant during robbery, when police tried to arrest them, they made firing upon the police party, police party also made firing in retaliation, and thereafter accused were arrested---Although eye-witness in his statement under S.161, Cr.P.C. which was taken the next day, but he gave no hulia or description of any of the accused in the same---No description of the accused also appeared in the FIR who were stated to be unknown persons---Eye-witness was also not named in the FIR---Said witness in his evidence also stated that he never told the police that he could make a sketch of the accused which was in contradiction with the police evidence which stated that he and another eye-witness (who was not examined) made sketches of the accused persons which were not exhibited at trial---Witness did not know the accused persons prior to the incident and only got a fleeting glance of them from a distance of over twenty paces with indifferent light at best and during a chaotic and life threatening incident---Conviction could be based on the evidence of a sole eye-witness, however, based on the particular facts and circumstances of the case, it was found that even if the eye-witness was present at the time of the incident, he would not have been able to correctly, safely and reliably identify the 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.

Javed Khan v. State 2017 SCMR 524 and Mian Sohail Ahmed v. State 2019 SCMR 956 rel.

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

----Ss. 302, 324, 392, 353, 427 & 34---Qanun-e-Shahadat (10 of 1984), Art.22---Qatl-i-amd, attempt to commit qatl-i-amd, robbery, assault or criminal force to deter public servant from discharge of his duty, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence---Benefit of doubt---Test identification parade---Delay of about one month in conducting the identification parade---Scope---Accused were charged for committing murder of the brother of the complainant during robbery, when police tried to arrest them, they made firing upon the police party, police party also made firing in retaliation, and thereafter the accused were arrested---Accused claimed that they were shown to the police prior to the identification parade which took place a month after the incident and with an unexplained delay of nine days after their arrest during which period two out of the three accused persons were kept in police custody---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, 324, 392, 353, 427 & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, robbery, assault or criminal force to deter public servant from discharge of his duty, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence--- Withholding material evidence---Scope---Accused were charged for committing murder of the brother of the complainant during robbery, when police tried to arrest them, they made firing upon the police party, police party also made firing in retaliation, and thereafter accused were arrested---Two other natural eye-witnesses who were on the prosecution witness list were dropped---Said witnesses would have been extremely important natural eye-witnesses in corroborating the evidence of sole eye-witness and in particular that of the correct identification of the accused persons, presumption could be drawn under Art. 129(g) Quun-e-Shahadat, 1984 that they would not have supported the prosecution case especially in terms of a correct identification---Prosecution had, therefore, for reasons best known to itself deliberately withhold the best evidence---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.

Toor Jan v. The State 2020 YLR 1099 and Riaz Ahmed v. The State 2010 SCMR 846 rel.

(e) Criminal trial---

----Medical evidence---Scope---Medical evidence could only reveal how the deceased died, what kind of weapon was used and the seat of the injuries---Medical evidence could not identify the person who inflicted the injuries.

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

----Ss. 302, 324, 392, 353, 427 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, robbery, assault or criminal force to deter public servant from discharge of his duty, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence---Benefit of doubt---Recovery of pistols on the pointation of accused---Reliance---Scope---Accused were charged for committing murder of the brother of the complainant during robbery, when police tried to arrest them, they made firing upon the police party, police party also made firing in retaliation, and thereafter accused were arrested---After the arrest of accused persons following the alleged police encounter no wallet or mobile phone of the deceased or the eye-witness was found on the accused and thus there was no evidence to link them to the murder on their arrest---Question had arisen that as to why the accused would keep the pistols after the murder, which would incriminate them---Logic, commonsense and reason dictated that they would have disposed of such pistols---In fact the evidence revealed that the encounter in effect was one of ineffective firing where no one was injured which tended to suggest that no such encounter took place and the pistols might have been foisted on the accused---No recovery was made from co-accused, who was not arrested at the time of the encounter and who apparently made his escape good---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, 324, 392, 353, 427 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, robbery, assault or criminal force to deter public servant from discharge of his duty, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence---Benefit of doubt---Confession of accused before police---Scope---Accused were charged for committing murder of the brother of the complainant during robbery, when police tried to arrest them, they made firing upon the police party, police party also made firing in retaliation, and thereafter accused were arrested---Police in their evidence admitted that they had no idea who had committed the murder of the deceased until accused admitted whilst in police custody for the encounter and arm case that they had murdered the deceased, likewise accused whilst in jail custody in another case---Not only such confessions before the police were inadmissible in evidence but it did not appeal to logic, commonsense and reason that a person booked in an encounter and arms case would out of the blue confess to murder when there was no evidence against him for that offence which carried the capital penalty---No effort was made to get the confessing accused S.164, Cr.P.C. statements recorded before a Judicial Magistrate despite the accused was being produced before a Judicial 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 against accused was allowed, in circumstances.

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

----Ss. 302, 324, 392, 353, 427 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, robbery, assault or criminal force to deter public servant from discharge of his duty, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence---Benefit of doubt---Accused pointed out the place of wardat---Scope---Accused were charged for committing murder of the brother of the complainant during robbery, when police tried to arrest them, they made firing upon the police party, police party also made firing in retaliation, and thereafter accused were arrested---Accused persons led the police to the place of wardat---Said fact that the accused persons could lead the police to the wardat was irrelevant as the police already knew where the wardat was---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 convictions and sentences recorded by the Trial Court.

Hayatullah v. The State 2018 SCMR 2092 rel.

(i) Criminal trial---

----Benefit of doubt--- Principle---Prosecution must prove its case against the accused beyond a reasonable doubt and the 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.

Raj Ali Wahid Kunwar for Appellants (in Special Criminal Anti-Terrorism Appeals Nos. 102 to 105 of 2019 and Special Criminal Anti-Terrorism Jail Appeal No.27 of 2020).

Ali Haider Saleem, Addl. Prosecutor General, Sindh for the State (in Special Criminal Anti-Terrorism Appeals Nos. 102 to 105 of 2019 and Special Criminal Anti-Terrorism Jail Appeal No.27 of 2020).

2023 Y L R 1029

[Sindh]

Before Aftab Ahmed Gorar, J

Mirza HASAN ALI---Appellant

Versus

The STATE and 2 others---Respondents

Criminal Acquittal Appeal No. 393 of 2020, decided on 27th August, 2021.

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

----S. 417---Limitation Act (IX of 1908), S. 5---Appeal against acquittal---Condonation of delay---Scope---Appeal against acquittal had been filed after the expiry of prescribed period of limitation for about one hundred and fifteen days---Contention of appellant was that being an old age citizen he was confined in his home due to COVID-19 pandemic---Delay of each day had not been explained in the application under S. 5 of Limitation Act, 1908---Explanation for filing appeal after expiry of limitation period was also not convincing---Application for condonation of delay was dismissed---Resultantly, the criminal acquittal appeal was dismissed.

Mst. Sirajun Munira v. Pakistan through Assistant Deputy Director Genera (Admn), Islamabad 1998 SCMR 785 rel.

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

----S.5---Condonation of delay---Scope---Defaulting party while applying for condonation of delay must explain and account for the delay of each day because on expiry of period of limitation, a valuable right is created in favour of the other party.

2002 SCMR 1903 rel.

S. Hassan M. Abidi for Appellant.

None present for said respondents as notice have not been issued to them for Respondents.

2023 Y L R 1036

[Sindh (Sukkur Bench)]

Before Aftab Ahmed Gorar and Fahim Ahmed Siddiqui, JJ

NAVEED ALI alias NADEEM---Applicant

Versus

Syed GULAM MURTAZA SHAH and another---Respondents

Criminal Bail Application No. D-2 of 2020, decided on 22nd January, 2021.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 148, 149, 109, 404 & 427---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, armed with deadly weapon, abetment, dishonest misappropriation of property possessed by deceased person at the time of his death, mischief causing damage to the amount of fifty rupees, act of terrorism---Bail, refusal of---Absconsion---Desperate and hardened criminal---Scope---Prosecution case was that the accused along with others attacked upon the complainant party when they were on a routine election expedition to visit other party workers at different polling stations---Accused was named with a specific role---Eleven persons had lost their lives on the spot while one succumbed to injuries during treatment---Some policemen were available with the complainant party to provide protection but the attackers had come to the scene of the incident with such planning that even they could not retaliate and also lost their lives---Accused had remained fugitive from law and had not voluntarily surrendered---When the allegation levelled against the accused was viewed in the backdrop of his fugitiveness, it became evident that he was a desperate criminal, who had taken part in the alleged incident without any personal motive---Firing upon the opponent on the day of election with an intention to kill the rivals and to prevent the general public to use their right of franchise was an act of terrorism---Accused was not entitled for bail, as such, his bail plea was declined, in circumstances.

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

----S. 497---Bail---Delay in conclusion of trial--- Statutory ground of delay---Scope---For deciding whether the accused occasioned delay in the trial, it is not necessary to count and consider the entire docket and segregate such dates to calculate the days of delay with mathematical precision, overall act and conduct of the accused persons to frustrate trial through a planned and pre-determined scheme is sufficient to divest them---Although, the statute has given a right under the third proviso of S.497(1), Cr.P.C., but the fourth proviso is a controlling proviso, which prevents from pervasive misuse by zealous judicial vigilance at the time of extending benefit under the third proviso by using a frightening expression as "desperate or dangerous criminal"---Term desperate is itself meaningful.

Nusrat Ali Shar Baloch for Applicant.

Irshad Hussain Dharejo for the Complainant

Shafi Muhammad Mehar, D.P.G.

2023 Y L R 1048

[Sindh]

Before Omar Sial, J

KHAMISO and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. 268 of 2005, decided on 5th October, 2022.

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 340(2)---Qatl-i-Amd---Appreciation of evidence---Grave and sudden provocation---Proof---Defence evidence---Appreciation of evidence---Accused persons were convicted by Trial Court for committing Qatl-i-Amd---Neither of the defence witnesses even attempted to provide an alibi for accused---Defence witnesses were vague and their narration was sketchy and doubtful---When defence evidence was put in juxtaposition with prosecution case, it was prosecution case that was more convincing and believable---Throughout the trial accused persons never even suggested that they were provoked, to the contrary till the last minute, which was evident from defence witnesses they produced, they pleaded that they were not even present at the scene let alone being involved in the incident in any manner---Only during hearing of appeal that accused persons made a plea on such ground whereas they had been convincing High Court that they had not committed murder---Accused persons wanted to make their case fall within the ambit of "grave and sudden provocation" the burden of proof was on them and not the prosecution---Accused persons did not discharge such burden at trial---Plea raised in appeal was an afterthought---Act of accused persons did not fall within the provisions of S. 302(c), P.P.C.---High Court declined to interfere in conviction and sentence awarded by Trial Court---Appeal was dismissed, in circumstances.

Ali Ahmed and another v. The State and others PLD 2020 SC 201 and Bashir Ahmed and another v. The State and another 2022 SCMR 1187 ref.

Muhammad Akbar Khan and Falak Sher Khan for Appellants.

Talib Ali Memon, A.P.G. for the State.

2023 Y L R 1074

[Sindh]

Before Zulfiqar Ahmad Khan, J

ATIF AHMED and another---Plaintiffs

Versus

SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN ("SECP") through Chairman and 5 others---Defendants

Suit No. 311 of 2022, decided on 1st July, 2022.

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

----O. XXXIX, Rr. 1 & 2---Interim injunction, grant of---Principles---Relief of injunction is discretionary and is to be granted by any court according to sound legal principles and ex debito justitiae---Existence of prima facie case is to be judged or made out on the basis of material/evidence on record at the time of hearing of injunction application and such evidence of material should be of the nature that by considering the same, court should or ought to be of the view that plaintiff applying for injunction was in all probability likely to succeed in the suit by having a decision in his favour---Term "prima facie case" is not specifically defined in Civil Procedure Code, 1908 but consensus is that in order to satisfy about existence of prima facie case, pleadings must contain facts constituting existence of right of plaintiff and its infringement at the hands of opposite party---Balance of convenience is that if an injunction is not granted and suit is ultimately decided in favour of plaintiff, inconvenience caused to plaintiff would be greater than that would be caused to defendant, if the injunction is granted---Plaintiff was to show that inconvenience caused to him would be greater than that which may be caused to defendant---Irreparable loss is meant to be the loss, which is incapable of being calculated on the yardstick of money---Injunction is equitable remedy and accordingly is to conform to maxim of law of equity that "he who seeks equity must do equity".

Al-Tamash Medical Society v. Dr. Anwar Ye Bin Ju 2017 MLD 785; Shahzad Trade Links v. MTW Pak Assembling Industries Pvt. Ltd. 2016 CLC 83 and Sayyid Yousaf Hussain Shirzai v. Pakistan Defence Officers' Housing Authority and others 2010 MLD 1261 rel.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1 & 2---Banking Companies Ordinance (LVII of 1962), S.14(5)(a)---Corporate Governance Regulatory Framework and Regulations 8 & 9 of Prudential Regulations for Corporate/ Commercial Banking/DFI, Cl. G-5(2) (3)(4)---Suit for declaration, injunction and recovery of damages---Interim injunction, refusal of---Shares of bank, acquiring of---Principle---Plaintiffs were aggrieved of public announcement regarding eligibility to acquire 51% shares of bank in question---Validity---Section 14(5)(a) of Banking Companies Ordinance, 1962, clause G-5(2)(3)(4) of Corporate Governance Regulatory Framework and Regulations 8 & 9 of Prudential Regulations For Corporate/ Commercial Banking/DFI mandated that a person eager to acquire share of any company/bank had to undergo fit and proper test in advance before acquiring the same---Prior approval of State Bank of Pakistan was required for any change in existing sponsor shareholdings---Bank in question had to ensure to give prior intimation to State Bank of Pakistan before dealing with any investor and was to seek State Bank of Pakistan's approval for allowing due diligence---Plaintiffs failed to make out prima facie case and in fact balance of convenience was in favour of defendants---No question of sustaining any irreparable injury was ascended to plaintiffs---High Court declined to grant interim injunction in favour of plaintiffs---Application was dismissed, in circumstances.

2019 YLR 345; PLD 2019 SC 43; PLD 2016 Sindh 50; PLD 2018 Sindh 222; 2010 MLD 1267; (1992) 1 SCC 719; 2013 CLC 454; PLD 2018 Lah. 198; 1998 MLD 362; PLD 1971 SC 376; PLD 1986 Kar. 574; Abu Dhabi Medical Devices Co. L.L.C. v. Federation of Pakistan 2010 CLC 1253; Taylor v. Salmon and Messrs Getz Pharma (Pvt.) Limited and others v. Novartis AG and others 2022 CLD 61 ref.

(c) Administration of justice---

----Technicalities---Scope---Prescriptions of statute are not mere technicalities and disregard thereof would render entire process into miscarriage of justice. [p. 1084] C

Haider Waheed, Ahmed Masood, Zoha Sirhindi, Munim Masood, Muhammad Altaf, Agha Mustafa Durrani and Samil Malik Khan for Plaintiffs.

Ijaz Ahmed for Defendant No.2 along with Atifuddin, Legal Counsel of SBP.

Tariq Qureshi for Defendant No.3 along with Ghulam Akbar Lashari.

Jahanzeb Awan for Defendant No.4 along with Rashid Mahar, and Muhammad Usman Ahmed.

Wasiq Hussain Malik for Defendant No.6.

Raza Mohsin Qizilbash, Director (Legal), SBP.

Muhammad Akhtar Javed, Director Banking Policy Regulation Department, SBP.

Syed Shahzad Akram, Attorney of Summit Bank.

2023 Y L R 1084

[Sindh (Hyderabad Bench)]

Before Nazar Akbar and Khadim Hussain Tunio, JJ

MUHAMMAD FAHEEM---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-74 of 2019 and Confirmation Case No. 7 of 2019, decided on 12th February, 2021.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt--- Unnatural conduct of eye-witnesses--- Effect--- Accused was charged that he and two co-accused committed murder of the brother of the complainant by causing dagger blows---Motive behind the occurrence was a quarrel took place between accused and the deceased---Prosecution had produced complainant and another witness as eye-witnesses---Both the witnesses were closely related to the deceased, the complainant was deceased's cousin and other witness was his nephew---In the present case, the two unknown culprits were shown to be empty handed and accused was allegedly armed with a dagger which he threw away after the commission of offence at the crime scene, thus making him empty handed as well before running away from the place of incident---Two persons and complainant made no effort even to try and catch hold of the culprits, who were empty handed---Accused had run down the same set of stairs they came up from, thus also proving a hindrance in their escape yet the complainant party did not chase the culprits---Circumstances established that the prosecution had not proved its case against the accused for the offence charged beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Sharif and 2 others v. The State 2020 SCMR 1818; Abdul Qayyum v. The State 2020 YLR 1649; Muhammad Imran v. The State 2020 SCMR 857; Muhammad Ilyas v. Ameer Ali 2020 SCMR 305; Hashim Qasim v. The State 2017 SCMR 986; Wajahar Ahmed v. The State 2016 SCMR 2073; Sada Bux v. The State 2016 YLR 463; Irfan Ali v. The State 2015 SCMR 840; Pathan v. The State 2015 SCMR 315; Ali Sher v. The State 2015 SCMR 142; Rahat Ali v. The State 2010 SCMR 584; Muhammad Rafique v. The State 2010 SCMR 385; Noor Muhammad v. The State 2010 SCMR 97; Rahimullah Khan v. Kashif PLD 2008 SC 298; Muhmmad Farooq v. The State 2006 SCMR 1707; Iftikhar Hussain v. The State 2004 SCMR 1185; Abdullah v. The State 1999 SCMR 1034; Mehmood Ahmed v. The State 1995 SCMR 127 and Muhammad Nadeem v. The State 2011 SCMR 872 ref.

Muhammad Khan and another v. The State 1999 SCMR 1220 and Muhammad Imran v. The State 2020 SCMR 857 rel.

(b) Criminal trial---

----Witness--- Related and interested witness---Statement of related and interested witness---Reliance---Scope---Evidence of a witness could not be discarded merely on the basis of a relationship inter se or being interested---If the testimony of a related/interested witness found no corroboration by independent pieces of evidence, then the evidence furnished by a related/interested witness could be discarded.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Delay of about 24 hours in lodging the FIR---Effect---Accused was charged that he along with his two co-accused committed murder of the brother of the complainant by causing dagger blows---Record showed that the FIR was lodged with a delay of 24 hours, even though the police station was said to be at a distance of one kilometre only---Occurrence took place at about 04.30 p.m., whereas the FIR was lodged on the next day at about 05.00 p.m.---Deceased was declared dead upon arrival at the hospital, but complainant did not go to the police station on the same day and lodge the FIR---Such a delay could not simply be brushed aside as it assumed great significance and it could be attributed to consultation, taking instructions and calculated preparations of report, keeping in view the name of the assailant open to involve such persons to whome ultimately the prosecution might wish to nominate---Circumstances established that the prosecution had not proved its case against the accused for the offence charged beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Akhtar Ali v. The State 2008 SCMR 6 and Muhammad Rafique v. The State 2014 SCMR 1698 rel.

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

----Ss. 302(b), 109 & 34---Criminal Procedure Code (V of 1898), S. 161---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Delay of over four days in recording the statements of witnesses---Effect---Accused was charged that he and two co-accused committed murder of the brother of the complainant by causing dagger blows---Record showed that there was a delay of over four days in recording the statement of the witnesses---Such delay in recording the statement without furnishing any plausible explanation was fatal to the prosecution case and the statement of such witnesses could not be relied upon---Appeal against conviction was allowed, in circumstances.

Syed Muhammad Shah v. The State 1993 SCMR 550 rel.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Weapon of offence recovered from the place of occurrence---Scope---Accused was charged that he along with his two co-accused committed murder of the brother of the complainant by causing dagger blows---Record showed that the dagger used in the commission of offence was recovered from the crime scene---Investigating Officer failed to collect finger prints from the dagger so as to establish at a later stage that the same was indeed used by the accused in the commission of offence---Neither fingerprints were taken from the weapon of offence recovered from place of wardat nor the same were sent for expert opinion---No fingerprints had been taken of the murder weapon, which meant that nothing was available on the record to link the accused with the crime weapon---Circumstantial evidence linking the accused to the offence was entirely lacking---Prosecution evidence i.e. dagger, being highly doubtful did not benefit the prosecution case---Circumstances established that the prosecution had not proved its case against the accused for the offence charged beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Delay in sending the weapon of offence and last worn clothes for analysis---Scope---Accused was charged that he along with his two co-accused committed murder of the brother of the complainant by causing dagger blows---Record showed that the case property including dagger and last worn clothes of deceased was sent to the chemical examiner after four days had passed from the day of occurrence---During that time, the said property was said to be deposited in the malkhana per the deposition in cross-examination of Investigating Officer--- However, Investigating Officer also simultaneously deposed the case property was not in his custody---Incharge of malkhana was not witness in that case---Said admissions by the Investigating Officer followed by the fact that no entry of Register No.19 kept at police station as per Form No.22.70 of Chap. XXII of Police Rules, 1934, regarding deposit of case property in malkhana was produced which raised further doubts in the prosecution case---Said fact completely shattered the admissibility of any case property produced before the Trial Court---Circumstances established that the prosecution had not proved its case against the accused for the offence charged beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Motive was not proved---Effect---Accused was charged that he and two co-accused committed murder of the brother of the complainant by causing dagger blows---Motive in the FIR was that the occurrence had taken place due to a quarrel between the accused and deceased which was resolved in the past, but accused held the grudge and then murdered the deceased---One witness introduced another motive and deposed that co-accused had a dispute with his cousin and deceased was supporter of his cousin, therefore, co-accused had assigned the task to the accused to murder the deceased---Co-accused had been acquitted by the Trial Court and neither the complainant nor the State had filed appeal against acquittal of co-accused---Motive set out by the prosecution remained far from being proved---Generally, motive did not hold much value but in cases involving murder especially like the present case, motive hold great importance---Circumstances established that the prosecution had not proved its case against the accused for the offence charged beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Pathan v. The State 2015 SCMR 315; Safdar Abbas and others v. The State and others 2020 SCMR 219 and Lal Khan v. The State 2006 SCMR 1846 rel.

(h) Criminal trial---

----Benefit of doubt---Principle---Benefit of doubt must be given to the accused as a matter of right and not as a matter of grace---No requirement to suggest many circumstances to create a doubt as even a single circumstance creating a reasonable doubt in a prudent mind about the guilt of the accused made him entitled to its benefit.

Muhammad Ikram v. The State 2009 SCMR 230; Tariq Pervaiz v. The State 1995 SCMR 1345 and Haji Kasim Khan v. Qadeer Khan 2018 YLR 282 rel.

Ms. Naila Kausar Shaikh for Appellant.

Syed Nadeem-ul-Haq the Complainant.

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

2023 Y L R 1109

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

MUHAMMAD SHAHID alias BAHADUR---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 4, 10 and 11 of 2012, decided on 28th April, 2020.

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

----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abducting for extorting property, valuable securities, common intention, act of terrorism---Appreciation of evidence---Delay of about four hours and forty five minutes in lodging the FIR---Scope---Accused were charged for kidnapping the friends of complainant for ransom---Record showed that the FIR was filed within hours of the incident and such prompt filing of the FIR ruled out the possibility of the complainant concocting a false case against the accused with the police or any other third party---Complainant had no enmity with the accused and had no reason to falsely implicate them in a case---Circumstances established that the prosecution had proved its case against all the accused beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 22---Kidnapping or abducting for extorting property, valuable securities, common intention, act of terrorism---Appreciation of evidence---Test identification parade---Scope---Accused were charged for kidnapping the friends of complainant for ransom---Taxi driver, who was also abducted and detained in a room for twenty one days, picked out three persons at an identification parade as kidnappers---Said eye-witness was a natural witness and not a chance witness---Said witness had no enmity with the accused and had no reason to falsely implicate them---Evidence of said witness was not dented despite lengthy cross-examination and as such it was believable that said eye-witness had correctly identified all the accused as playing a role in his kidnapping for ransom along with the other abductees---Eye-witness/other abductee was abducted along with taxi driver---Despite a lapse of two years in giving his evidence from the incident in his evidence he corroborated eye-witness in all material respects---Said witness specifically stated that the kidnappers told him that they had kidnapped them for ransom and if no ransom was paid they would kill them---Same considerations applied to the said witness as for other eye-witness/abductee and for the same reasons believable that he had correctly identified the accused and he mentioned some of the persons who played a role in his kidnapping for ransom---Same considerations applied to the third abductee/eye-witness---Evidence of said witnesses corroborated each other in all material respects and at three separate identification parades every witness identified each of the accused as being involved in his kidnapping for ransom---Said witness had correctly identified all five accused who played a role in his kidnapping for ransom---Another abductee/eye-witness gave the same evidence as eye-witnesses/abductees---Evidence of said witness corroborated each other in all material respects---Said witness stated in his evidence that he was the abductee who was not initially released with the other abductees but was kept in captivity because his parents had not paid the ransom---Said abductee was released after his parents had paid the ransom---However, despite identifying all the accused at the identification parade, he refused to do so in court and was declared hostile by the prosecution---Another eye-witness who was the maternal uncle of an abductee, was not an abductee/eye-witness but was a witness to the ransom negotiations and an eye-witness to identifying one of the persons whome he paid the ransom amount---Judicial Magistrate, who conducted three separate identification parade of the accused who were picked up by the eye-witnesses, prepared and exhibited all the memos of identification parade, which confirmed that each of the eye-witnesses/abductees did identify each accused as per their evidence before the identification parade which he carried out---Circumstances established that the prosecution had proved beyond a reasonable doubt that all the accused were guilty of kidnapping the abductees---Circumstances established that the prosecution had proved its case against all the accused beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

Javed Khan alias Bacha v. The State 2017 SCMR 52; Ghulam Hussain v. The State 2005 YLR 405; Muhammad Shahid alias Shandi 2010 YLR 2950; Sabir Ali alias Fauji v. The State 2011 SCMR 563; Shafqat Mehmood v. The State 2011 SCMR 537; Ghulam Qadir v. The State 2008 SCMR 1221; Siraj ul Haq v. The State 2008 SCMR 302; Muhammad Tufail v. The State 2013 SCMR 768; Lal Pasand v. The State PLD 1981 SC 142; Junaid Rehman v. The State PLD 2011 SC 1135; Muhammad Siddique v. The State 2020 SCMR 342; The State v. Haider Zaidi and others 2002 SCJ 310 and Zakir Khan v. The State 1995 SCMR 1793 ref.

Ghazanfar Ali v. The State 2012 SCMR 215; Zakir Khan v. State 1995 SCMR 1793; The State v. Haider Ali and others 2001 SCMR 1919 and Muhammed Siddique v. State 2020 SCMR 342 rel.

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

----Art. 22---Identification parade---Delay in conducting the test identification parade---Scope---Even a delay of over one year in holding the identification parade was not fatal if the identifier had correctly identified the accused.

Solat Ali Khan v. The State 2002 SCMR 820 rel.

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

----Art. 22---Identification parade---Scope---Identification parade is only a corroborative piece of evidence and could not supersede reliable, trustworthy, confidence inspiring direct evidence.

Muhammad Ehsan v. The State 2006 SCMR 1857 rel.

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

----S. 365-A---Kidnapping for ransom---Scope---To be guilty of the offence under S. 365-A, P.P.C., it was not to be proved that a ransom was actually paid but only that a ransom demand was made.

Sh. Muhammed Amjad v. The State PLD 2003 SC 704 rel.

(f) Criminal trial---

----Contradictions--- Scope--- Contradic-tions 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 were of no consequence.

Zakir Khan v. State 1995 SCMR 1793 rel.

Ms. Akhtar Rehana for Appellants (in Special Criminal Anti-Terrorism Appeals Nos. 4, 10 and 11 of 2012).

Muhammad Iqbal Awan, Deputy Prosecutor General for the State (in Special Criminal Anti-Terrorism Appeals Nos. 4, 10 and 11 of 2012).

Muhammad Munir Ahmed for Appellants (in Special Criminal Anti-Terrorism Appeal No. 11 of 2012).

2023 Y L R 1130

[Sindh]

Before Ahmed Ali M. Shaikh, C.J. and Yousuf Ali Sayeed, J

KHURSHEED ANWAR HABIB---Applicant

Versus

MUHAMMAD AMIN and another---Respondents

Criminal Revision Application No. 86 of 2015, decided on 13th August, 2021.

Penal Code (XLV of 1860)---

----Ss.406 & 420---Criminal Procedure Code (V of 1898), Ss. 200 & 439---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), S.10-A---Criminal breach of trust and cheating---Appreciation of evidence--- Appeal against acquittal---Complainant Bank assailed judgment passed by Trial Court whereby accused was acquitted of the charge--- Validity--- Complaint and statement recorded under S. 200, Cr.P.C. were couched in general terms so as to broadly mention that accused "approached the Bank" but did not disclose details of what transpired on relevant date in terms of identifying who was responsible for custody of documents and/or instrumental in their release---When accused approached complainant Bank for release of documents, he could not have demonstrated such urgency as to prevail upon complainant Bank's functionaries to accede to release of documents without following necessary formalities by way of securing prior payment, as required under the Contract, or at least marking a lien over the account to be debited---Run of the mill customer of complainant Bank could scarcely have had such leverage as to prevail on its functionaries to make an accommodation of that nature, and neither the period of his banking relationship nor statement of account had suggested any special circumstances due to which accused would have been able to command such privilege---Presumption of double innocence had arisen in favour of acquitted accused and interference could be warranted only when decision to that effect was found to be capricious, arbitrary and perverse---High Court declined to interfere in judgment of acquittal passed by Trial Court---Revision was dismissed in circumstances.

State v. Abdul Khaliq PLD 2011 SC 554 rel.

Shaukat Hayat for Applicant.

Khaleeque Ahmed for Respondent No. 1.

Ch. Muhammad Waseem, Assistant Attorney General for Respondent No. 2.

2023 Y L R 1148

[Sindh]

Before Aftab Ahmed Gorar, J

ABDUL GHAFFAR and others---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos. 566, 671, 672, 912, 913, 972, 973, 1003, 1004, 1505, 1506, 1507, 1591 to 1594 and 1663 to 1666 of 2021, decided on 21st September, 2021.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 161, 165, 165-A & 109---Prevention of Corruption Act (II of 1947), S. 5---Public servant taking gratification other than legal remuneration in respect of an official act, public servant obtaining valuable thing, without consideration from person concerned in proceeding or business transacted by such public servant, abetment of offences defined in Ss. 161 & 165, P.P.C.---Criminal misconduct---Pre-arrest bail, grant of---Scope---Accused persons sought bail before arrest---Co-accused who was booked in another crime registered by the same agency, which was not only punishable under the same sections under which the accused persons were being tried but Ss. 3 & 4 of Anti-Money Laundering Act, 2010, were also added and had already been granted post-arrest bail---Accused persons were also entitled for grant of bail---Bail granting order had gone unchallenged by the prosecution---Investigating Officer had categorically made a statement that all the accused persons had joined investigation inasmuch as their respective statements had also been recorded---Pre-arrest bail were allowed, in circumstances.

Khawaja Shamsul Islam and Shahzad Mehmood for Applicant (in Criminal Bail Application No. 566 of 2021).

Haider Waheed and Muhammad Ahmed Masood for Applicants (in Criminal Bail Applications Nos. 671, 672, 972, 973, 1003, 1004, 1505, 1506, 1507, 1591, 1592, 1593, 1594, 1663, 1664, 1665 and 1666 of 2021).

Shakeel Ahmed for Applicant (in Criminal Bail Applications Nos.912 and 913 of 2021).

Muhammad Ahmed, Assistant Attorney along with Muhammad Nadeem Khan, Assistant Attorney General along with I.O. Sheheryar AD FIA, CCRC, Karachi.

2023 Y L R 1160

[Sindh]

Before Mohammad Karim Khan Agha and Abdul Mobeen Lakho, JJ

ASHIQUE HUSSAIN KORAI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 392 of 2019 and Confirmation Case No. 15 of 2019, decided on 27th April, 2021.

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

----Ss. 302(b) & 34--- Qatl-i-amd, common intention---Appreciation of evidence--- Sentence, reduction in---Medical evidence--- Post-mortem examination not conducted---Effect---Accused were charged for committing murder of the cousin of complainant and his wife by firing---Medical Officer issued Medico-Legal Certificate were produced before the Trial Court---No post-mortem examinations of the deceased were conducted, however the deceased were medically examined by Medical Officer, when they were in injured condition---Medical Officer stated that deceased received fire arm injuries---All material particulars had been mentioned in the medical certificates produced before Trial Court, therefore, failure to conduct post-mortem of deceased in such circumstances would not demolish the prosecution case---Deceased persons died due to fire arm injuries---Findings of the Trial Court in that regard required no interference---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt, however, motive was not alleged, therefore appeal against conviction was dismissed, however, the sentence of death was altered to life imprisonment in respect of each murder.

Sabir Ali v. The State 2011 SCMR 563; Farman Ahmed v. Muhammad Inayat and others 2007 SCMR 1825; Zeeshan alias Shani v. The State 2012 SCMR 428; Irfan Ali v. The State 2015 SCMR 872 and Inayat Khan and another v. The State PLD 1983 SC 395 ref.

Abdur Rehman v. The State 1998 SCMR 1778 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention--- Appreciation of evidence---Sentence, reduction in---Accused were charged for committing murder of the cousin of complainant and his wife by firing---Prosecution in order to prove its case had relied upon the evidence of four eye-witnesses including complainant---Record showed that the complainant lodged the FIR against accused on the same day with promptitude leaving no time to cook up a false case---Complainant in cross-examination, had stated that he knew the accused for the last 12 to 14 years, who was posted at Police Station and was a friend of his father---Evidence of complainant and eye-witnesses was found consistent, straight forward and confidence inspiring, which was sufficient to bring home the charge against the accused---Said eye-witnesses knew the accused as such they were easily able to identify him as there was sufficient light provided by generators and as such there was no need to hold an identification parade---Said witnesses were not chance witnesses as the complainant's shop was opposite the flat where the other eye-witnesses used to gather---Defence had failed to dispute the presence of eye-witnesses at the time of incident and their evidence was found to be reliable, trustworthy and confidence inspiring, duly supported by the medical evidence and could be relied upon---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt---Motive was not alleged---Appeal against conviction was dismissed, however, and the sentence of death was reduced to life imprisonment in respect of each murder.

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

----S.302(b)---Qatl-i-amd---Statement of single witness--- Scope--- Conviction in murder case, could be based on the testimony of a single witness, if the court is satisfied that the witness is reliable.

Niaz-ud-Din and another v. The State and another 2011 SCMR 725 rel.

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

----Ss. 302(b) & 34--- Qatl-i-amd, common intention--- Appreciation of evidence---Sentence, reduction in---Minor contradictions in the statement of witness---Scope---Accused were charged for committing murder of the cousin of complainant and his wife by firing---No major contraction in the statement of witnesses had been pointed out by the defense---Minor contradictions/ omissions in the evidence of eye-witnesses was natural phenomena and no importance could be attached to such minor contradictions---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt---Motive was not alleged---Appeal against conviction was dismissed and, however, sentence of death was reduced to life imprisonment in respect of each murder.

(e) Criminal trial---

----Evidence--- Direct evidence---Corroboration---Admissibility---If court is satisfied about the truthfulness of direct evidence then the corroborative evidence is not of much significance---Corroboration is not a rule of law but is that of prudence.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention--- Appreciation of evidence---Sentence, reduction in---Absconsion of accused---Scope---Accused were charged for committing murder of the cousin of complainant and his wife by firing---Record showed that accused remained absconder and was arrested after four months---Conduct of accused and unexplained absconsion was also corroborative piece of evidence against him to connect him in the case---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt---Motive was not alleged---Appeal against conviction was dismissed, however, sentence of death was reduced to life imprisonment in respect of each murder.

Riaz Hussain v. The State 2001 SCMR 177 rel.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, common intention---Appreciation of evidence--- Defence plea---Scope---Accused were charged for committing murder of the cousin of complainant and his wife by firing---Accused raised plea of alibi---No cross-examination of any prosecution witness was made on the point of alibi, thus, the eye-witnesses and other corroborative evidence had proved that the accused murdered the deceased---High Court observed that with regard to the murder of lady deceased, no other conclusion could be drawn except that the accused or his son shot her, because the accused and his son were alone with lady deceased in her flat when the eye-witnesses heard the gunshot from her flat and they rushed to her flat within minutes of the shot the accused and his son were coming from out of the flat---No other explanation except that the accused murdered the lady deceased---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt---Motive was not alleged---Appeal against conviction was dismissed, however, the sentence of death was reduced to life imprisonment in respect of each murder.

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

----Ss. 302(b) & 34--- Qatl-i-amd, common intention---Appreciation of evidence---Non-recovery of weapon of offence--- Reliance--- Scope--- Accused were charged for committing murder of the cousin of complainant and his wife by firing---Motive was not alleged---No weapon of offence was recovered from the accused---Effect---Non recovery of murder weapon from the accused was inconsequential, as he absconded for four months and would have got rid of the murder weapon during that period---Accused was not expected to keep it as a trophy---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt, appeal was dismissed and the convictions of the accused on the charge under S.302(b), P.P.C. were maintained, but, reduced the sentence from death to life imprisonment in respect of each murder.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive was not alleged---Scope---Accused were charged for committing murder of the cousin of complainant and his wife by firing---Complainant in his statement under S. 154, Cr.P.C., had not mentioned any motive in the commission of the crime by the accused---Complainant though had tried to explain the motive during the trial, but it could not be relied upon as it was an improvement at the trial stage---Appeal against conviction was dismissed in circumstances---Sentence of death was reduced to life imprisonment in respect of each murder.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention--- Appreciation of evidence---Motive alleged at trial stage by complaint which was not relied---Effect---Accused were charged for committing murder of the cousin of complainant and his wife by firing---Admittedly, if motive was not alleged at proper stage or was not proved, normally the sentence of death was converted into imprisonment for life---In such circumstances, appeal against conviction was dismissed the sentence of death was reduced to life imprisonment in respect of each murder.

Muhammad Ashraf v. The State 2012 SCMR 419; Hasil Khan v. The State 2012 SCMR 1936 and Jehanzeb v. The State 2003 SCMR 98 rel.

Raj Ali Wahid Kunwar for Appellant.

Muhammad Iqbal Awan, Deputy Prosecution General, Sindh for the State

Ms. Saadia Khatoon for the Complainant.

2023 Y L R 1177

[Sindh]

Before Muhammad Shafi Siddiqui, J

Messrs AGP LIMITED through Authorized Representative and another---Plaintiffs

Versus

Messrs GALAXY PHARMA (PRIVATE) LIMITED and others---Defendants

Suit No. 2707 and C.M.A. No. 1999 of 2021, decided on 15th September, 2022.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for declaration, injunction and recovery of damages---Interim injunction, grant of---Necessary ingredients---Proof---Plaintiff was a pharmaceutical company who had conferred rights upon defendant in respect of distribution of products in Pakistan and some of the products were registered in the name of defendant by issuance of registration letters---Plaintiff company claimed for transfer of earlier registered product in its favour from defendant---Validity---Principal operators informed Drug Regulatory Authority that plaintiff was their affiliated who terminated distribution agreement with defendant for distribution of products---Principal operator and plaintiff had a new agreement to distribute the products within the territory of Pakistan and four specific drugs were highlighted---Plaintiff was again authorized by foreign principal, which facts were communicated to Drug Regulatory Authority of Pakistan---In absence of any contract between foreign principal and defendant it was a matter of serious concern if defendant would continue to manufacture, market and sell product of foreign principal without its permission and authorization---Plaintiffs disclosed a prima facie case with balance of inconvenience and irreparable loss in their favour---High Court granted interim injunction to plaintiffs against defendant--- Application was allowed, in circumstances.

Abdul Sattar Pirzada and Mamoon N. Chaudhry for Plaintiffs.

Haroon Dugal for Defendant No.1.

Hafiz Bilal Bin Akbar, Deputy Director Legal DRAP.

Qazi Ayazuddin, Assistant Attorney General.

2023 Y L R 1188

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar, J

ASLAM and 4 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. S-113 of 2020, decided on 2nd July, 2021.

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

----Ss. 302(b), 364 & 34---Qatl-i-amd, kidnapping or abducting in order to murder, common intention---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of the father of the complainant after kidnapping him---Evidence of alleged eye-witness, showed that it was apparent that he had admitted in clear terms that the accused persons took his father to a hospital and after treatment left the dead body of his father there---If contents of S.364, P.P.C., were put in juxtaposition to the said admission of the alleged eye-witness, it might safely be observed that had the accused any intention to kidnap or abduct complainant's father in order to commit his murder then what was the fun in taking him to the hospital for treatment as admitted by the alleged eye-witness---Ingredients of S.364, P.P.C., were totally lacking in the case---Circumstances established that the prosecution had failed to prove its case against the accused---Compromise between the parties was also effected, hence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 364 & 34---Qatl-i-amd, kidnapping or abducting in order to murder, common intention---Appreciation of evidence---Benefit of doubt---Unnatural conduct of eye-witnesses--- Scope---Accused were charged for committing murder of the father of the complainant after kidnapping him---Father of alleged eye-witness was being mercilessly beaten and then allegedly kidnapped along with coaster, instead of approaching the police immediately, eye-witness and his brother, who also claimed to have seen the alleged incident, escaped away from the place of incident and went by foot to a hotel situated at a distance of about 4/5 kilometres from place of incident and remained there for about one hour and thirty minutes---Said witness also admitted that he went to other place wherefrom he took his sister---Said witness also admitted that the distance in between two places would be about 150 kilometres---No explanation had come forward from the prosecution side as to why instead of approaching police station straight away, the alleged two eye-witnesses, who were also real sons of the deceased, spent a long time of one hour and thirty minutes at a hotel and travelled a long distance of about 150 Kilometres---Said admission reflected that either the complainant/eye-witness was not available at the time of alleged incident or the incident had not taken place in the manner as reported---Circumstances established that the prosecution had failed to prove its case against the accused---Compromise between the parties was also effected---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 364 & 34---Qatl-i-amd, kidnapping or abducting in order to murder, common intention---Appreciation of evidence---Benefit of doubt---Delay of two days in lodging FIR---Effect---Accused were charged for committing murder of the father of the complainant after kidnapping him---Admittedly, there was a delay of two days in lodging the FIR---No plausible explanation had come forward from the prosecution side for such an inordinate delay---Possibility of deliberation and false implication of the accused could not be overruled---Circumstances established that the prosecution had failed to prove its case against the accused---Compromise between the parties was also effected---Appeal against conviction was allowed, in circumstances.

Ayub Masih v. The State PLD 2002 SC 1048 rel.

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

----Ss. 302(b), 364 & 34---Qatl-i-amd, kidnapping or abducting in order to murder, common intention---Appreciation of evidence---Benefit of doubt---Infirmities and discrepancies in the prosecution case---Scope---Accused were charged for committing murder of the father of the complainant after kidnapping him---Record showed that there were serious infirmities and discrepancies in the prosecution case---Delay of 28 days in exhumation proceedings, as admitted by Judicial Magistrate---In the final post-mortem report it was opined that cause of death of deceased was undetermined---No crime weapon, allegedly used by the accused, had been recovered from any of the accused---Although it had been alleged that the coaster allegedly driven by the deceased was secured from lands of accused, however, no material had been placed on record to establish that the land/place of recovery belonged to the accused---Circumstances established that the prosecution had failed to prove its case against the accused---Compromise between the parties was also effected---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 364 & 34---Criminal Procedure Code (V of 1898), S. 345---Qatl-i-amd, kidnapping or abducting in order to murder, common intention---Appreciation of evidence---Compounding of offence--- Scope--- Accused were charged for committing murder of the father of the complainant after kidnapping him---Admittedly, the parties had entered into compromise and the legal heirs of the deceased had forgiven the accused in the name of Almighty Allah and had waived their right of Qisas and Diyat---When the offence under S. 302, P.P.C., being the main offence, had come to an end consequent upon the compromise having been entered into by the parties, the question arose as to whether the offence under S. 364, P.P.C., allegedly committed by the accused in continuation of offence under S. 302, P.P.C., would be merged---Assistant Prosecutor General appearing for the State had conceded to such proposal---Both the parties had amicably settled all their differences and disputes and had agreed to pass rest of their lives in peace, tranquillity and harmony---Non-compoundability of a particular offence under any section of the enactment should not be read in isolation but it should be read in the background of each criminal case and beneficial interpretation should be given to it---In the present case, when both the parties had earnestly decided to live in peace and tranquillity by ignoring and settling all their past differences, then for the sake of their welfare in particular and betterment of socioeconomic conditions of the society as a whole, it would be prime need of the time to accept the compromise and consequently acquit the accused from the charges---Application filed under S. 345(2), Cr.P.C., was allowed, in circumstances.

Ijaz and another v. Mst. Manadia PLD 2016 Pesh. 26; The State v. Irfanullah Qazi 2007 MLD 1269; Hussain Bux and others v. The State PLD 2003 Kar. 127; Ashique Solangi and another v. The State PLD 2008 Kar. 420; Imdad Hussain v. The State PLD 2008 Lah. 450; Shahid v. The State and another 2017 YLR Note 81; Ali Raza and another v. The State and another PLD 2013 Lah. 651 and Manzoor Ali v. The State 2020 PCr.LJ 278 rel.

Aijaz Shaikh and Kamran Baig for Appellants.

Ms. Rameshan Oad, Asstt. Prosecutor General, Sindh for the State.

Ali Ahmed Patoli for the Complainant.

2023 Y L R 1204

[Sindh]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

SHAHID ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 609 and Confirmation Case No. 11 of 2018, decided on 15th March, 2021.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Circumstantial evidence---Last seen evidence---Scope---Accused was charged for committing murder of the son of complainant---One witness had lastly seen deceased boy at the door of the shop of accused---Said witness had explained his presence in front of the shop of accused---Record reflected that house of the deceased boy was situated at the distance of 2/3 minutes from the shop of accused---Witness of last seen evidence had no enmity to falsely implicate the accused in the offence of a shocking nature of the crime committed with a child of tender age---Said witness had clearly explained that on the day of incident, he got stopped rickshaw at a Masjid for offering Asar prayers at 6:00 p.m.---Rickshaw was parked in front of the shop of the accused and he had seen a boy aged about seven years, was called by the accused who was present in his wielding shop---Deceased went inside the shop, then said witness after offering prayers went on the same Rickshaw to his house---Evidence of said witness was quite reliable and trustworthy, he had no motive to falsely implicate the accused in the murder case---No reason existed to disbelieve said witness---Trial Court had also rightly relied upon his evidence---Time mentioned by said witness was in line with time of occurrence in the FIR and probable time of death of deceased mentioned in the post-mortem report---Evidence of said witness was quite reliable and confidence inspiring as he had no motive to falsely implicate the accused in the case---Said witness had stated that he knew the deceased boy before that incident and the distance between the house of deceased and that witness was only half kilometre---Evidence of said witness was believable---No legal flaw or infirmity in the evidence of the said prosecution witness had been brought on record by the defence---Circumstances established that the prosecution had proved its case against the accused beyond reasonable doubt---Appeal against conviction was dismissed, in circumstances.

Fayyaz Ahmad v. The State 2017 SCMR 2026 ref.

Muhammad Ehsan v. The State 2006 SCMR 1857 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of incriminating material---Scope---Accused was charged for committing murder of the son of complainant---Evidence showed that accused attempted to commit sodomy upon the deceased boy---When the deceased refused, accused put piece of cloth on his mouth and stabbed multiple injuries on his chest and abdomen---Dead body of the deceased was then thrown by accused in the water tank attached to his shop---Blood, chappal and cloth were found in the shop of the accused by the Investigating Officer---Investigating Officer collected report of Chemical Examiner, which was positive---Investigating Officer also collected shalwar of the accused and it was found stained with human sperm as per report of Chemical Examiner---All the witnesses were cross-examined at length, who remained coherent on salient features of prosecution version---Circumstances established that the prosecution had proved its case against the accused beyond reasonable doubt---Appeal against conviction was dismissed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Extra judicial confession---Scope---Accused was charged for committing murder of the son of complainant---Record showed that the accused was arrested on the next day of the incident and while in police custody, anchor/media person/witness interviewed him and it was telecasted---Accused admitted his guilt---Media person was examined and he had also no reason to falsely implicate the accused in the case---Said media person was independent witness---CD prepared by the said witness was played in the court and trial court rightly believed it---Extra judicial confession made before news anchor/ media person in the present case also inspired confidence because media person had no motive to falsely implicate the accused in the case---When evidence of media person was read in conjunction with other circumstantial evidence, it was found most reliable piece of evidence---Circumstances established that the prosecution had proved its case against the accused beyond reasonable doubt---Appeal against conviction was dismissed, in circumstances.

(d) 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 son of complainant---Medical evidence viz. post-mortem report and statement of Medical Officer, who conducted post-mortem examination of the deceased, supported prosecution case---Investigating Officer submitted positive report of Chemical Examiner regarding shalwar of accused which was found stained with human sperm---Opinion of Medical Officer showed that deceased sustained multiple injuries on his chest and abdomen---Accused attempted to commit sodomy with a child, when failed, due to fear he killed the boy---Circumstances established that the prosecution had proved its case against the accused beyond reasonable doubt---Appeal against conviction was dismissed, in circumstances.

Qamar Iqbal for Appellant.

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

Muhammad Ayoub Khattak for the Complainant.

2023 Y L R 1227

[Sindh (Hyderabad Bench)]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

MANSOOR AHMED and others---Appellants

Versus

The STATE---Respondents

Criminal Jail Appeal No. D-51, Criminal Appeal No.D-52 and Confirmation Case No. 5 of 2016, decided on 24th June, 2021.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular account supported by medical evidence---Scope---Accused was charged that he along with his co-accused made firing upon the complainant party, due to which one person died while two were injured---Dispute on the rotation of water for irrigating the land was motive behind the occurrence---Ocular account had been furnished by three eye-witnesses---All the three eye-witnesses deposed against the accused with specific role of causing fire shots from their respective weapons upon the deceased---Two of the eye-witnesses received firearm injuries at the scene and as such their presence had been established---Evidence of all three eye-witnesses was found to be reliable, trustworthy and confidence inspiring---All the three eye-witnesses were consistent on each and every point and were cross-examined by the defence but they were on one line and fully supported the case of prosecution---All three eye-witnesses knew accused persons and had a good look at the accused persons from close range---No doubt that the eye-witnesses had correctly identified the accused persons, especially as they had no reason to implicate them in a false case---In the circumstances no identification parade was required with respect to accused persons who were named and given a specific role in the FIR---No material contradiction was pointed out by the defence---Ocular evidence furnished by the eye-witnesses was further corroborated by the medical evidence and other circumstantial evidence---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt by producing independent, trustworthy, reliable and confidence-inspiring evidence---Appeal against conviction was dismissed accordingly.

Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068; Zahir Shah v. The State 2019 MLD 1562; Abdul Jabbar v. The State 2019 YLR 1073; Bilal v. The State 2019 PCr.LJ 401; Muhammad Asif v. The State 2019 MLD 1197; Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Mehr Ali and others v. The State 1968 SCMR 161; Akhtar Saleem and another v. The State 2019 MLD 1107; Murad Ali Bangalani and 5 others v. The State 2019 PCr.LJ 95; Noor Alam v. Abdul Wahab 2018 YLR 1571; Malik Aamir Sultan and 2 others v. The State and another 2018 MLD 1635; Muhammad Tariq v. The State 2017 YLR 1999; Abdul Haleem v. The State 2016 YLR 1418; Shahid alias Waris v. The State 2016 YLR Note 97; Muhammad Ishaque v. The State 2007 SCMR 108; Liaquat Ali v. The State 2008 SCMR 95; Muhammad Mushtaq v. The State and others 2019 MLD 1002; Notice to Police Constable Khizar Hayat in Cr. Misc. Appl. No.200 of 2019 PLD 2019 SC 527; Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652; Muhammad Mansha v. The State 2018 SCMR 772; Muhammad Rafique v. The State 2014 SCMR 1698; Shahzad Tanveer v. The State 2012 SCMR 172 and and Nadeem alias Nanha alias Billa Sher v. The State 2010 SCMR 949 ref.

Umar Hayat v. The State 2007 SCMR 1296 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence--- Motive was proved---Scope---Accused was charged that he along with his co-accused made firing upon the complainant party, due to which one person died while two were injured---Record showed that the motive as asserted by the prosecution was properly investigated by the Investigating Officer who collected the share list of rotation of water from the irrigation department and the same was produced by him during the evidence---Further the Investigating Officer was cross-examined on that point who stated that deceased was murdered due to dispute over rotation of irrigation water---Said witness further stated that from perusal of share list it came to his knowledge that at the time of incident the turn of getting water was of complainant party---From all those facts it was established that the prosecution had proved the motive for the murder by producing oral as well as documentary evidence---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt by producing independent, trustworthy, reliable and confidence-inspiring evidence---Appeal against conviction was dismissed accordingly.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Related and interested witnesses---Scope---Accused was charged that he along with his co-accused made firing upon the complainant party, due to which one person was died while two were injured---Defence alleged that the witnesses were related to each other and were interested and therefore their evidence could not be relied upon---Such contention had no force as in the case in hand the eye-witnesses had sufficiently explained the date, time and place of occurrence as well as each and every event of the occurrence---Two of three witnesses produced by the prosecution were injured eye-witnesses and no substance had been brought on record by the accused persons to justify their false implication in the case at the hands of the complainant party---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt by producing independent, trustworthy, reliable and confidence-inspiring evidence---Appeal against conviction was dismissed accordingly.

Lal Khan v. State 2006 SCMR 1846; Zulfiqar Ahmed and another v. State 2011 SCMR 492 and Zahoor Ahmed v. The State 2007 SCMR 1519 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay of 24 hours in lodging the FIR---Effect---Accused was charged that he along with his co-accused made firing upon the complainant party, due to which one person died while two were injured---Incident took place at 06.00 p.m. and the FIR was registered on the next day at 03.00 p.m.---Delay was explained by the complainant and the prosecution witness by deposing that after the incident complainant immediately informed the police on telephone and on the information police reached at the hospital where they first took the two injured persons who after getting first-aid were referred to Civil Hospital for better treatment---Said fact had also been admitted by the Investigating Officer and the complainant---Medical Officer also deposed that injured were brought in hospital and they after the first-aid were referred to Civil Hospital---Delay if any in registration of the FIR was properly explained by the complainant---Delay if any occurred in the registration of FIR was not fatal to the case of prosecution---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt by producing independent, trustworthy, reliable and confidence-inspiring evidence---Appeal against conviction was dismissed accordingly.

Abdul Khalique v. The State 2020 SCMR 178 rel.

(e) Criminal trial---

----Minor contradictions--- Scope--- If prosecution established its case beyond reasonable doubt and if there are some minor contradictions which always were available in each and every case as no one could give evidence like photograph, such might be ignored.

Zakir Khan v. The State 1995 SCMR 1793 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Quantum of punishment---Deterrent punishment---Scope---Accused was charged that he along with his co-accused made firing upon the complainant party, due to which one person was died while two were injured---Act of the accused persons was gruesome and merciless, keeping in view the brutality of the crime, where one innocent person was murdered and two were injured on their lands when they were taking water of their share to irrigate the land---In presence of aggravating circumstances and the need to discourage such kind of offences, which were most common and remained so, a deterrent sentence was the appropriate one---Appeal against conviction was dismissed and Murder Reference was answered in affirmative, in circumstances.

Dadullah v. State 2015 SCMR 856 rel.

Syed Zeeshan Shah for Appellants.

Ms. Sana Memon, A.P.G. Sindh for Respondent.

Ayatullah Khowaja for the Complainant.

2023 Y L R 1253

[Sindh]

Before Aqeel Ahmed Abbasi and Abdul Mobeen Lakho, JJ

Messrs KAZMIA TRUST (Regd.) through duly authorized---Appellant

Versus

Messrs KAZ INTERNATIONAL (PVT.) LTD. and 5 others---Respondents

H.C.A. No. 290 of 2009, C.M.As. Nos. 1378, 1379 of 2022, 1719 of 2012, 1690 of 2013, 1242 of 2014 and 1632 of 2009, decided on 16th May, 2022.

Civil Procedure Code (V of 1908)---

----O. XXIII, R. 3---Law Reforms Ordinance (XII of 1972), S. 3----Intra Court Appeal---Compromise between parties---Appellants sought disposal of appeal in view of compromise arrived at between parties outside of Court---Validity---Parties under litigation settled their dispute outside the Court---In terms of compromise agreement parties agreed to disposal of appeal in such terms---High Court by consent of all present disposed of the appeal---High Court directed the office to modify judgment and decree passed by Single Judge of High Court---Disposal of appeal in terms of compromise between the parties was without prejudice to the right and interest of third party, if any, and subject to law, including company law, that would have binding effect between the parties---Intra Court Appeal was disposed of accordingly.

Muhammad Mushaffy, Fahad Mushaffy and Faizan Mushaffy, Advocates for Appellant along with Syed Munir Hussain Kazmi son of Syed Wajih Hasan Kazmi (Managing Trustee of the appellant)

2023 Y L R 1264

[Sindh]

Before Aftab Ahmed Gorar, J

ABDUL JABBAR---Applicant

Versus

The STATE---Respondents

Criminal Bail Application No. S-1389 of 2022, decided on 17th August, 2022.

Criminal Procedure Code (V of 1898)---

----S. 497--- Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51---Transportation of narcotic---Bail, refusal of---Scope---Accused was arrested with charas weighing 2470 grams---Mashirnama of arrest and recovery supported the alleged recovery of the narcotic drug---Alleged narcotic was dispatched to the Chemical Examiner and such chemical report was positive and also supported the prosecution version---Narcotic was recovered from the conscious possession of the accused---Accused person's claim of false implication was an issue that could not be attended without going beyond the scope of tentative assessment, a venture prohibited by law---Guilt or innocence of the accused was yet to be established as it would depend on the strength and quality of the evidence produced/to be produced by the prosecution and defense before the Trial Court---Accused was not entitled to the concession of post-arrest bail---Bail application was dismissed, in circum-stances.

Ali Khan v. The State 2022 PCr.LJ 690; Muhammad Noman Munir v. The State and another 2020 SCMR 1257 and Bilal Khan v. The State 2021 SCMR 460 ref.

Abid Hussain Shirazi for Applicant.

Ms. Seema Zaidi, Addl. P.G. Sindh for the State.

2023 Y L R 1276

[Sindh (Larkana Bench)]

Before Omar Sial and Zulfiqar Ali Sangi, JJ

ZAHEER---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-41 of 2020, decided on 5th May, 2021.

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

----S. 9(c)---Possession of 3000 grams charas--- Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses--- Scope---Prosecution case was that 3000 grams of charas was recovered from the possession of accused---Record showed that there were contradictions in the statements of witnesses, which established that the complainant and mashir were not the true eye-witnesses of the arrest of the accused and recovery of charas from his possession---Conduct of the Investigating Officer also seemed to be doubtful---In the presence of the contradictions in the evidence of complainant, mashir and Investigating Officer, it was clear that the prosecution failed to prove its case against the accused beyond shadow of reasonable doubt and the recovery had not been satisfactorily proved---No implicit reliance could be placed in such contradictions in the evidence of prosecution witnesses---Circumstances established that all the evidence produced by the prosecution was completely unreliable and utterly deficient to prove the charge against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Shazia Bibi v. The State 2020 SCMR 460 ref.

Muhammad Akram v. The State 2009 SCMR 230 rel.

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

----S. 9(c)---Possession of 3000 grams of charas--- Appreciation of evidence---Benefit of doubt---Safe custody---Non-production of incharge malkhana--- Effect---Prosecution case was that 3000 grams of charas was recovered from the possession of accused---Admittedly the incharge of malkhana where the property was kept in safe custody was not examined during the investigation nor was he produced before the Trial Court for recording his evidence to prove the safe custody of the recovered narcotic---Non examination of incharge of the malkhana in whose possession the property was, fatal to the case of prosecution and made it doubtful---Circumstances established that all the evidence produced by the prosecution was completely unreliable and utterly deficient to prove the charge against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Mst. Sakina Ramzan v. The State 2021 SCMR 451 rel.

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

----S. 9(c)---Possession of 3000 grams of charas---Appreciation of evidence---Benefit of doubt---Delay of five days in sending the sample for analysis---Scope---Prosecution case was that 3000 grams of charas was recovered from the possession of accused---Sample was received with the delay of five days and the same delay had not been explained by the prosecution, which made the entire case of prosecution doubtful---Circumstances established that all the evidence produced by the prosecution was completely unreliable and utterly deficient to prove the charge against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Nazar Muhammad alias Nazroo v. The State 2018 YLR 1992 rel.

(d) Criminal trial---

----Benefit of doubt--- Conviction---Conjectures and probabilities---Scope---Mere conjectures and probabilities could not take the place of proof---If a case was decided merely on high probabilities regarding the existence or non-existence of a fact to prove the guilt of a person, the golden rule of giving benefit of doubt to an accused person, which had been a dominant feature of the administration of criminal justice with the consistent approval of the Constitutional Courts, would be reduced to a naught.

Ahmed Bux Abro for Appellant.

Ali Anwar Kandhro, Additional Prosecutor General for the State.

2023 Y L R 1293

[Sindh]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

WAHAJ ALI and another---Appellants

Versus

The STATE---Respondents

Special Criminal Anti-Terrorism Jail Appeals Nos. 53 and 189 of 2020, decided on 9th January, 2021.

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

----Ss. 324, 353, 427 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his public duty, mischief causing damage to amount of fifty rupees, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Prosecution case was that when the accused were signalled to stop, one of the accused made firing upon police party, due to which two Police Officials sustained injuries---Record showed that the incident took place at night time i.e. 08.30 pm and no source of light was mentioned in the FIR---Sudden encounter took place in the spur of the moment, wherein the accused resorted to firing and fled away from the crime scene immediately thereafter by causing injuries to two Police Constables---Admittedly, no roznamcha entry or departure or arrival was produced/exhibited in the evidence---Said lapse on the part of the prosecution cut the roots of the prosecution and also the prosecution case---Incident in which two Police Constables were shot but not a single police mobile chased the culprits, which also created doubt in a prudent mind regarding the mode and manner of the occurrence as alleged in the FIR---Accused, though, were interrogated by the police but neither crime weapon nor the motorcycle used in the commission of crime could be recovered by the police---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Noor Islam v. Ghani ur Rehman and another 2020 SCMR 310; State/ Government of Sindh v. Sobharo 1993 SCMR 585 and Muhammad Nawaz and another v. The State and others PLD 2005 SC 40 ref.

Abdul Sattar and others v. The State 2002 PCr.LJ 51 rel.

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

----Ss. 324, 353, 427 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art.22---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his public duty, mischief causing damage to amount of fifty rupees, common intention, act of terrorism---Appreciation of evidence---Test identification parade---Scope---Prosecution case was that when accused were signalled to stop, one of the accused made firing upon police party, due to which two Police Officials sustained injuries---In the present case, the only piece of evidence on which the prosecution relied upon was the identification parade conducted before the Judicial Magistrate, where the accused were identified by the injured witnesses---Such identification of the accused in the test identification parade was laconic, besides being the weakest piece of evidence---Said identification parade lost its judicial efficacy because the complexion, height, weight and features etc. of the accused were not given in the report---Reason being that a brief assault during the night would certainly leave a little space for the witnesses to meticulously capture details thereof, particularly descriptive features of the assailants in the absence of a source of light conspicuously missing in the crime report---Identification test in the absence of description of the accused in the FIR was of no value---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.

Noor Islam v. Ghani ur Rehman and another 2020 SCMR 310; State/ Government of Sindh v. Sobharo 1993 SCMR 585 and Majeed alias Majeedi and others v. The State 2019 SCMR 301 rel.

(c) Criminal trial---

----Benefit of doubt---Principle---Benefit of all favourable circumstances in the prosecution evidence must go to the accused regardless of whether he had taken any such plea or not.

Muhammad Nawaz and another v. The State and others PLD 2005 SC 40 rel.

Nasrullah Korai for Appellants.

Ali Haider Saleem, Deputy Prosecutor General Sindh for the State.

2023 Y L R 1299

[Sindh]

Before Mohammad Karim Khan Agha and Abdul Mobeen Lakho, JJ

NAJEEBULLAH and another---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 171, 172, 173 and 174 of 2020, decided on 1st April, 2021.

(a) Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Recovery of explosive substance and firearms, act of terrorism---Appreciation of evidence---Prosecution case was that pistols with two live bullets and hand grenades were recovered from the possession of the accused persons---Allegedly no private person was associated as mashir to witness the arrest and recovery---Complainant in his evidence had stated that it was night time i.e. 01.45 a.m. and due to such odd hours of the night, none was present there such contention had no force---Accused were caught red-handed and even the car they were riding in was recovered, which had fake number plates---Circumstances established that findings of guilt rendered by the Trial Court against the accused did not suffer from any infirmity---Appeal, against conviction was dismissed accordingly.

(b) Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Recovery of explosive substance and firearms, act of terrorism---Appreciation of evidence---Discrepancies in the prosecution case---Scope---Prosecution case was that pistols with two live bullets and hand grenades were recovered from the possession of the accused persons---With regard to the contention of the defence that there was a discrepancy in the colour of the hand grenades, record showed that the description of the hand grenades was available in the mashirnama of arrest and recovery and the same matched with the Clearance Certificates issued by the Bomb Disposal Unit, so also detailed reports of Bomb Disposal Unit were also in line with the prosecution case---Even otherwise a mere discrepancy in the colour of hand grenades was not fatal to the prosecution case, especially when the recovery was effected from the accused at the odd hours of the night---Appeal against conviction was dismissed, in circumstances.

Zakir Khan and others v. The State 1995 SCMR 1793 rel.

(c) Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Recovery of explosive substance and firearms, act of terrorism---Appreciation of evidence---Safe custody of the recovered substance and firearms---Scope---Prosecution case was that pistols with two live bullets and hand grenades were recovered from the possession of the accused persons---Defence argued that safe custody of the explosive and pistols had not been proved by the prosecution---Reports of Forensic Science Laboratory reported that sealed parcels were received in which seals were intact---Nothing on record to establish that the said parcels ever tampered with rather the evidence led by the prosecution established that the parcels received by the said agency remained intact---Appeal against conviction was dismissed, in circumstances.

(d) Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S. 342---Recovery of explosive substance and firearms, act of terrorism---Appreciation of evidence---Defence plea---Scope---Prosecution case was that pistols with two live bullets and hand grenades were recovered from the possession of the accused persons---Record reflected that in their statements recorded under S. 342, Cr.P.C., the accused claimed that they were falsely implicated in the case, however, they had not produced any witness in support of their contention and even no application to higher authorities or any constitutional petition was filed by anyone for the release of the accused, which suggested that the accused managed a false story to save their skin---No suggestion against the Police Officials of enmity or ill-will was made during cross-examination nor any application or petition was filed before any forum to prove false implication of the accused in the case---Evidence of the police witnesses were reliable, trust-worthy and confidence inspiring and had no reason to doubt---Recovery of hand grenades, .30 bore pistols, and live bullets were proven by the prosecution by producing confidence-inspiring and trustworthy evidence supported by the Bomb Disposal Unit reports so also report of Forensic Science Laboratory---Appeal against conviction was dismissed, in circumstances.

(e) Criminal trial---

----Witness---Police witnesses---Reliance---Scope---Police Officials were as good as private witnesses and their testimony could not be discarded merely for the reason that they were Police Officials unless the defence succeeded in giving dent to the statements of prosecution/ police witnesses and proved their mala fide or ill-will against accused.

Muhammad Khalid, Shah Jahan Hanif and S. Faiz Ali for Appellants.

Zafar Ahmed Khan, Additional Prosecution General Sindh for State/ Respondents

2023 Y L R 1311

[Sindh (Larkana Bench)]

Before Naimatullah Phulpoto and Zulfiqar Ali Sangi, JJ

ARSLAN SANJRANI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-31 and Confirmation Reference No. D-11 of 2015, decided on 15th December, 2020.

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

----Ss. 302(b), 354 & 355---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Qatl-i-amd, assault or criminal force to woman with intent to outrage her modesty, assault or criminal force with intent to dishonour person otherwise than on grave provocation, acts of terrorism---Appreciation of evidence---Accused was charged for throwing acid at the face of daughter of the complainant, due to which the face, right eye and other parts of her body were burnt and she died---Motive behind the occurrence was that the accused demanded hand of victim and on refusal, he committed the offence---Eye-witnesses have sufficiently explained the date, time and place of occurrence as well as each and every event of the occurrence in clear-cut manner---Parties were known to each other as was evident from their evidence and that was a day time incident, so there was no chance of mistaken identity of the accused---No substance has been brought on record by the accused to justify his false implication in the case at the hands of the complainant party on account of the previous enmity---Ocular evidence was corroborated by medical evidence and with statement of deceased recorded by the police as well as journalist---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Zain-ul-Abideen v. Additional Session Judge and 7 others 2020 PCr.LJ Note 19; Saeed Akhtar and others v. The State 2000 SCMR 383; Namoos Khan and another v. The State 2017 PCr.LJ 34; Behram v. The State 2015 YLR 150 and Niaz-ud-Din and another v. The State 2011 SCMR 725 ref.

Lal Khan v. State 2006 SCMR 1846; Farooq Khan v. The State

2008 SCMR 917; Nazir v. The State PLD 1962 SC 269; Sheruddin v. Allhaj Rakhio 1989 SCMR 1461 and Zulfiqar Ahmed and another v. State 2011 SCMR 492

rel.

(b) Criminal trial---

----Witness--- Interested witness---Reliance---Scope---Interested witness is not the one who is relative or friend but is the one who has a motive to falsely implicate an accused.

(c) Criminal trial---

----Witness---Related witness---Scope---Mere relationship of the eye-witness with the deceased alone is not enough to discard the testimony of the said witness.

(d) Criminal trial---

----Previous enmity---Plea of accused that he had been implicated in the crime on account of previous enmity---Scope---Accused, in the matter of capital punishment, would not stand absolved by making a mere allegation of dispute/ enmity but would require to bring on record that there had been such a dispute/enmity which could be believed to have motivated the natural witnesses in involving the innocent at the cost of the escape of real culprits---If the natural witnesses are in blood-relations then normally the possibility of substitution becomes rare.

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

----Ss. 302(b), 354 & 355---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Qatl-i-amd, assault or criminal force to woman with intent to outrage her modesty, assault or criminal force with intent to dishonour person otherwise than on grave provocation, acts of terrorism---Appreciation of evidence---Previous enmity---Accused was charged for throwing acid at the face of daughter of the complainant, due to which the face, right eye and other parts of her body were burnt and she died---No material had been brought on record by the accused to show that the deep-rooted enmity existed earlier between the parties, which could have been the reason for false involvement of the accused in that case, particularly when it was a case of single accused---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Zahoor Ahmed v. The State 2007 SCMR 1519 rel.

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

----Ss. 302(b), 354 & 355---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Qatl-i-amd, assault or criminal force to woman with intent to outrage her modesty, assault or criminal force with intent to dishonour person otherwise than on grave provocation, acts of terrorism---Appreciation of evidence---Extra-judicial confession--- Scope---Accused was charged for throwing acid at the face of daughter of the complainant, due to which the face, right eye and other parts of her body were burnt and she died---Accused made extra-judicial confession before a journalist---Said journalist was the independent witness, having no enmity with the accused and the extra-judicial confession recorded by him was true and voluntary---Said witness during cross-examination replied that when he was recording the statement in camera of the accused in the lockup, there was no Police Official available in the lockup and further stated that accused was not under harassment as he observed---Likewise Superintendent of Police (Investigation) stated that at the time of recording the statement of the accused he got removed his handcuff and turned out the other police staff from his office then made inquiry from accused---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

(g) Criminal trial---

----Confession--- Judicial / extra-judicial confession--- Scope--- Judicial or extra-judicial confession could be made sole basis for conviction of an accused, if the court was satisfied and had believed that it was true and voluntary and was not obtained by torture, coercion or inducement.

PLD 2019 SC 64 and 2011 SCMR 1233 rel.

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

----Ss. 302(b), 354 & 355---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Qatl-i-amd, assault or criminal force to woman with intent to outrage her modesty, assault or criminal force with intent to dishonour person otherwise than on grave provocation, acts of terrorism---Appreciation of evidence---Motive was proved---Effect---Accused was charged for throwing acid at the face of daughter of the complainant, due to which the face, right eye and other parts of her body were burnt and she died---Motive behind the occurrence was that the accused demanded hand of victim and on refusal, he committed the offence---Motive which was setup in the FIR had been proved by they prosecution by producing trustworthy and confidence inspiring evidence---Evidence of eye-witnesses were found to be reliable, trustworthy and confidence inspiring that accused was demanding hand of the deceased for marriage and on refusal, he had thrown the acid upon her---Despite rejection of proposal of accused for marriage by deceased accused demonstrated extreme violence by throwing acid upon the deceased---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

(i) Criminal trial---

----Statement--- Minor contradiction---Scope---Minor contradictions, which were always available in each and every case as no one could give evidence like photograph, may be ignored.

Zakir Khan v. The State 1995 SCMR 1793 rel.

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

----Ss. 302(b), 354 & 355---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Qatl-i-amd, assault or criminal force to woman with intent to outrage her modesty, assault or criminal force with intent to dishonour person otherwise than on grave provocation, acts of terrorism---Appreciation of evidence---Aggravating circumstances---Scope---Accused was charged for throwing acid at the face of daughter of the complainant, due to which the face, right eye and other parts of her body were burnt and she died---In the present case, one innocent young girl was murdered by throwing acid upon her---In the presence of aggravating circumstances whereby the deceased received six separate burn injuries and the need to discourage such kind of offences which were regrettably most common and remained so, a deterrent sentence was the appropriate one---Appeal against conviction was dismissed, in circumstances.

Dadullah v. State 2015 SCMR 856 rel.

Habibullah Ghouri for Appellant.

Ali Anwar Kandhro, Additional Prosecutor General for the State.

2023 Y L R 1333

[Sindh (Sukkur Bench)]

Before Muhammad Junaid Ghaffar, J

SACHE DINO through L.Rs.---Applicants

Versus

PROVINCE OF SINDH through Secretary Land Utilization Department, Hyerabad and others---Respondents

Civil Revision No. S-63 of 2000, decided on 5th November, 2021.

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

----Ss. 135 & 161---Civil Procedure Code (V of 1908), Ss. 9 & O. VII, R.11---Application for partition---Jurisdiction of Civil Courts---Rejection of plaint---Appellate court maintained the order of the Trial Court rejecting the plaint of the suit under O. VII, R. 11, C.P.C. being not maintainable---Validity---Respondents filed an application for partition of the suit property in terms of S. 135 of the Sindh Land Revenue Act, 1967, and the Assistant Commissioner passed an order which was impugned by way of filing of a suit by the applicant notwithstanding the fact that such order was an appealable order in terms of S. 161(b) of the Sindh Land Revenue Act, 1967---Civil Court is a Court of ultimate jurisdiction and can in exceptional circumstances entertain a suit in respect of revenue matters and even against orders of the Revenue Authorities---Neither the order passed by the Revenue Authority was lacking jurisdiction; nor any mala fide intent or action had been brought on record; nor present case was a case wherein the remedy provided in law could be bypassed---Civil Court was not competent to interfere where Revenue Courts/ Authorities had exclusive jurisdiction---Mere filing of a suit without any restraining orders, interim or final, does not preclude partition of a property, if otherwise lawful---Courts below had arrived at a fair, just and legal conclusion while rejecting the plaint in the suit---Revision was dismissed accordingly.

Province of West Pakistan's case PLD 1960 (W.P) Karachi 908 rel.

Tariq G. Hanif Mangi for Applicants.

Sarfraz A. Akhund for Respondents Nos. 4 and 6.

Ahmed Ali Shahani, Assistant Advocate General, Sindh.

2023 Y L R 1357

[Sindh]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

The STATE through National Accountability Bureau---Appellant

Versus

LUTUF ALI KALHORO and 5 others---Respondents

Criminal Accountability Acquittal Appeal No. 1 of 2012, decided on 24th November, 2021.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(vi)---Qanun-e-Shahadat (10 of 1984), Art.129, illustration (g)---Misuse of authority---Appreciation of evidence---Appeal against acquittal---Withholding of best evidence---Presumption---Prosecution assailed judgment of acquittal passed against accused by Trial Court---Validity---Proceedings relating to inquiry and investigation were initiated on a complaint but that complainant was not examined by prosecution---Another prosecution witness who allegedly made application for exchange of land in question was also not examined by prosecution---Prosecution had the prerogative to examine witnesses of its choice but where a material witness was not examined and best evidence was withheld, the Court could draw an adverse inference under illustration (g) of Art.129 of Qanun-e-Shahadat, 1984---Courts were slow in interfering with acquittal judgment unless it was shown to be perverse, passed in gross violation of law suffering from errors of grave misreading or non-reading of evidence---Such judgments should not be lightly interfered and heavy burden was upon prosecution to rebut presumption of innocence which accused had earned and attained on account of his acquittal---Interference in judgment of acquittal was rare and prosecution must show that there were glaring errors of law and fact committed by Court in arriving at such decision, which would result into grave miscarriage of justice; acquittal judgment was perfunctory or wholly artificial or a shocking conclusion was drawn---Judgment of acquittal should not be interjected until findings were perverse, arbitrary, foolish, artificial, speculative and ridiculous---Court of appeal should not interfere simply for the reason that on reappraisal of evidence, a different conclusion could possibly be arrived at---Factual conclusions should not be upset, except when those were palpably perverse and suffering from serious and material factual infirmities---Acquitted accused acquired a triple presumption of innocence, which could not be dispelled by prosecution on any score---High Court declined to interfere in judgment of acquittal passed by Trial Court as the same was based on reasonable possible view---Appeal was dismissed, in circumstances.

Tahir Khan v. The State 2011 SCMR 646 and The State v. Abdul Khaliq PLD 2011 SC 554 rel.

Riaz Alam, Special Prosecutor NAB for Appellant.

Ashok Kumar, Muhammad Ahmed Pirzada and Waseem Iqbal for Respondents.

2023 Y L R 1368

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

GHULAM SARWAR GHANGRO---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-57 of 2020, decided on 4th March, 2022.

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

----Ss. 302(b), 337-H(2), 504 & 34---Qatl-i-amd, rash and negligent act endangering human life and personal safety of other, intentional insult with intent to provoke breach of peace, common intention--- Appreciation of evidence---Medical evidence---Scope---Accused were charged for committing murder of the son of the complainant by firing---Medical Officer, who conducted the post-mortem of the deceased, had deposed that from external and internal examination of the dead body of deceased, he was of the opinion that the death of deceased had occurred due to injuries on vital organ of the body which were caused by firearm---Said witness was cross-examined by the defence but nothing favourable to accused was found---Prosecution had proved its case in respect of the unnatural death of deceased---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused---Appeal was dismissed accordingly.

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

----Ss. 302(b), 337-H(2), 504 & 34---Qatl-i-amd, rash and negligent act endangering human life and personal safety of other, intentional insult with intent to provoke breach of peace, common intention---Appreciation of evidence---Ocular account---Scope---Accused were charged for committing murder of the son of the complainant by firing---Ocular account of the incident had been furnished by complainant/ father and brother of the deceased---Complainant deposed that accused persons came at his house and called them and informed them that they should accompany them for purchasing a buffalo---Complainant, deceased and his other son accompanied the accused persons, the accused persons led them towards forest area and they sit there under the chapra and after some time accused persons went by informing them that they were going to bring a buffalo but after some time both the accused armed with Kalashnikov returned back along with two more accused persons but had not brought the buffalo---Accused informed them that they had cheated them by bringing there in the forest area as they wanted to kill his son---Unknown persons stood guard upon them whereas accused caught hold his son and other accused caused fire arm injuries to his son and accused also robbed Rs. 25,000/- from son of complainant and all the accused persons ran away---Eye-witness/ brother of deceased stated the same story as deposed by the complainant---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused---Appeal was dismissed accordingly.

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

----Ss. 302(b), 337-H(2), 504 & 34---Qatl-i-amd, rash and negligent act endanger human life and personal safety of other, intentional insult with intent to provoke breach of peace, common intention---Appreciation of evidence---Related and interested witnesses---Reliance---Scope---Accused were charged for committing murder of the son of the complainant by firing---Contentions raised by defence that the witnesses were relatives of deceased and were interested, therefore, their evidence could not be relied upon, had no force---Although the witnesses were relatives of the deceased but they specifically deposed against the accused---During cross-examination it was also brought on record that the accused was also residing near the house of complainant party and the same had not been denied by the accused---Presence of complainant and the eye-witness at the place of wardat was also established from their evidence---No dent in the prosecution evidence which suggested that the accused was falsely involved in the commission of offence---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused---Appeal was dismissed accordingly.

Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152 and Zulfiqar Ahmed and another v. State 2011 SCMR 492 rel.

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

----Ss. 302(b), 337-H(2), 504 & 34---Qatl-i-amd, rash and negligent act endanger human life and personal safety of other, intentional insult with intent to provoke breach of peace, common intention---Appreciation of evidence---Non-recovery of crime weapon---Scope---Accused were charged for committing murder of the son of the complainant by firing---Defence objected that the crime weapon allegedly used by the accused at the time of offence was not recovered from him, therefore, the accused could not be connected with the murder of deceased---Said stance had no force in view of the fact that all the prosecution witnesses supported the case of prosecution by deposing that the accused had directly fired from the Kalashnikov which hit the deceased---Direct evidence of eye-witnesses was further corroborated by medical evidence as the doctor who examined the deceased had found firearm injuries on his person---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 beyond a reasonable doubt against the accused--- Appeal was dismissed accordingly.

Sikander Teghani alias Muhammad Bux Teghani v. The State 2016 YLR 1098 and Bashir Ahmed Leghari v. The State 2020 SCMR 595 rel.

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

----Ss. 302(b), 337-H(2), 504 & 34---Qatl-i-amd, rash and negligent act endanger human life and personal safety of other, intentional insult with intent to provoke breach of peace, common intention---Appreciation of evidence---Non-recovery of crime empties from the place of occurrence---Scope---Accused were charged for committing murder of the son of the complainant by firing---Defence raised objection that empties were not recovered from the place of wardat which might connect the accused with the commission of the offence had no force as no weapon was recovered from the accused because accused remained absconder, therefore there was no chance that said empties ought to be sent for Forensic Science Laboratory for matching with the weapon---In the present case the occurrence had taken place in the broad daylight and there was no chance of any misidentification---All the said factors when evaluated conjointly it was abundantly clear that the prosecution had succeeded to establish the case without any reasonable doubt---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused---Appeal was dismissed accordingly.

Muhammad Afzal v. The State 2020 SCMR 597 rel.

(f) Criminal trial---

----Witness--- Minor contradictions---Scope---Where, in the evidence, prosecution established its case against the accused beyond a reasonable doubt there were some minor contradictions which always were in each and every case the same might be ignored.

Zakir Khan v. The State 1995 SCMR 1793 rel.

Rukhsar Ahmed Junejo for Appellant.

Complainant in person.

Shafi Muhammad Mahar, Deputy Prosecutor General for the State.

2023 Y L R 1385

[Sindh]

Before Muhammad Shafi Siddiqui, J

Mst. IRSHAD BIBI---Plaintiff

Versus

SAMIULLAH NIAZI and others---Defendants

Suit No. 923 and C.M.As. Nos. 10157, 7983 and 14995 of 2019, decided on 4th November, 2022.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss. 39, 42 & 54---Suit for cancellation of document, declaration of title and injunction---Interim injunction, refusal of---Scope---Plaintiff filed a suit for administration, claiming that her father had purchased the property in question in the name of his nephew, which was later transferred to the plaintiff's two brothers and mother---Reason for not transferring the property to the daughters was that they were homemakers and could not attend the Registrar's office---Validity---Suit was commenced after an eviction order was passed against the plaintiff's husband in relation to the same property---Plaintiff was not able to provide convincing argument as to why the property was purchased in the name of the deceased's nephew and the reason given for not transferring it to the daughters was not sufficient---Plaintiff was not able to make out a prima facie case for an injunction---Neither the balance of inconvenience nor the irreparable loss favored the plaintiff---Application was dismissed.

Ms. Nausheen Khan Tajjamul for Plaintiff.

Muhammad Arif for Defendants Nos.1 to 5.

2023 Y L R 1392

[Sindh (Larkana Bench)]

Before Naimatullah Phulpoto and Zulfiqar Ali Sangi, JJ

NAZEER AHMED MUHAMMADANI and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. D-39 of 2020, decided on 25th November, 2020.

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

----Ss. 7 & 21-L---Criminal Procedure Code (V of 1898), Ss. 87 & 88---Appreciation of evidence---Absconder, punishment for---First Information Report was lodged against accused persons for qatl-i-amd, attempt to qatl-i-amd and rioting armed with deadly weapons and for demanding bhatta---None of the accused nominated in the FIR was arrested during course of investigation as such police filed challan in terms of S. 512, Cr.P.C., showing all the accused as absconders and 'Non-Bailable Warrants' were issued against all the accused by the Trial Court---Trial Court acquitted accused persons but absconding accused were convicted under S. 21-L of Anti-Terrorism Act, 1997 and sentenced them for five years---Validity---Record reflected that proceedings under Ss. 87 & 88, Cr.P.C., were initiated for declaring the appellants/accused as proclaimed offenders for the purpose of proceedings with the case in absentia---Charge was framed against the accused/appellants in the main offences in their absence---Record further revealed that before recording conviction, no charge was framed against the accused/appellants under S. 21-L of the Act---Trial Court was required to satisfy itself according to S. 19(10) of the Act that absence of the accused was deliberate---Trial Court had failed to follow the relevant provisions of law strictly---Trial Court had sentenced and convicted the accused/appellants under S. 21-L of the Anti-Terrorism Act, 1997 in their absentia---Procedure adopted by the Trial Court was absolutely illegal---No doubt, the accused/appellants had approached the High Court directly without filing an application under S. 19(12) of Anti-Terrorism Act, 1997, before Trial Court, under S. 25 of Anti-Terrorism Act, 1997, there was no bar that a person convicted and sentenced in absentia under S. 21-L of Anti-Terrorism Act, 1997, by the Trial Court could not file appeal without filing application under S. 19(12) of Anti Terrorism Act, 1997---Circumstances established that the prosecution had failed to prove the case under S. 21-L of the Anti-Terrorism Act, 1997 against the accused/appellants--- Appeal against conviction was allowed, in circumstances.

Mir Ikhlaq Ahmed and another v. The State 2008 SCMR 951; Ali Hassan v. The State 2009 MLD 1198 and Khanzado alias Ketoo Sabzoi v. The State 2015 PCr.LJ 1561 rel.

Saeed Ahmed Bijrani for Appellants.

Ali Anwar Kandhro, Additional Prosecutor General for the State.

2023 Y L R 1406

[Sindh (Hyderabad Bench)]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

AMJAD ALI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-113 of 2008, decided on 15th June, 2021.

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

----Ss. 302, 324, 337-A(i), 337-F(i), 337-F(ii), 504 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-mudihah, badiah, intentional insult with intent to provoke breach of peace, common intention---Appreciation of evidence---Sentence, reduction in---First Information Report was lodged with promptitude---Scope---Prosecution case was that the accused party while armed with deadly weapons assaulted on complainant party, due to which son of complainant died while complainant and his three companions received injuries on their body---FIR was lodged with promptitude within one hour of the incident---Any slight delay was explained by the fact that the complainant took the injured to the hospital, which was his immediate priority, where the deceased expired and thereafter he immediately came to the Police Station and lodged his FIR, thus, there was no time for him to cook up a false case against the accused and the other co-accused who were named and given specific roles in the FIR---Even otherwise no specific/proven enmity had come on record between the accused and the complainant party which would motivate them to lodge a false case against him---Circumstances established that the prosecution had proved its case against the accused, however, motive had not been proved, therefore the death sentence was reduced to imprisonment for life, in circumstances---Appeal was dismissed with said modification in sentence.

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

----Ss. 302, 324, 337-A(i), 337-F(i), 337-F(ii), 504 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-mudihah, badiah, intentional insult with intent to provoke breach of peace, common intention---Appreciation of evidence---Sentence, reduction in---Ocular account---Scope---Prosecution case was that the accused party while armed with deadly weapons assaulted on complainant party, due to which son of complainant died while complainant and his three companions received injuries on their body---Ocular account of the incident had been furnished by complainant and two injured witnesses---Complainant was not a chance witness as he was sitting at his own hotel with his son, cousin and friends who were attacked by the accused and others---Accused also lived close by and therefore was likely to be in the vicinity---Evidence of the complainant reflected that there had been no significant improvements in the FIR so as to render his evidence unreliable---Complainant had no proven enmity with the accused and had no reason to falsely implicate him in the murder of his son---Evidence of complainant was not dented despite lengthy cross-examination---Complainant did not intervene in the attack because he was unarmed and he did not give chase as his priority was to take his seriously injured son to hospital---Evidence of complainant was found to be reliable, trustworthy and confidence inspiring and could convict the accused on that evidence alone provided there was some supportive evidence---Injured eye-witness/ cousin of deceased corroborated eye-witness/complainant in all material respects---Said witness was named in the FIR as an eye-witness which FIR was lodged with promptitude---No significant improvements in his evidence so as to render it unreliable and the same considerations applied to him as to the complainant---Other injured eye-witness corroborated the eye-witness and complainant in nearly all material respects---Said witness was named in the FIR as an eye-witness shortly after the incident and gave his S.161, Cr.P.C. eye-witness statement shortly after the incident which left no room for concoction and the same considerations applied to him as to eye-witnesses---Circumstances established that the prosecution had proved its case against the accused, however, motive had not been proved, therefore death sentence was reduced to imprisonment for life, in circumstances---Appeal was dismissed with said modification in sentence.

Ghulam Abbas and another v. The State and another 2021 SCMR 23; Sufyan Nawaz and another v. The State and others 2020 SCMR 192; Shafi Muhammad and another v. The State 2011 PCr.LJ 1756; Muhammad Shah v. The State 2010 SCMR 1009; Qaddan and others v. The State 2017 SCMR 148; Ahmed Khan and 2 others v. The State 2018 YLR 1515; Sheer Muhammad v. The State 2020 PCr.LJ 864; Fazal Hussain alias Faqeera and others v. The State 2020 PCr.LJ 311 and Muhammad Riaz v. The State 2006 SCMR 954 ref.

Muhammad Ehsan v. The State 2006 SCMR 1857 and Farooq Khan v. The State 2008 SCMR 917 rel.

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

----Ss. 302, 324, 337-A(i), 337-F(i), 337-F(ii), 504 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-mudihah, badiah, intentional insult with intent to provoke breach of peace, common intention---Appreciation of evidence---Sentence, reduction in---Medical evidence---Scope---Prosecution case was that the accused party while armed with deadly weapons assaulted on complainant party, due to which son of complainant died while complainant and his three companions received injuries on their body---Record showed that Medical Officer fully supported the eye-witnesses/prosecution evidence as he stated in his evidence that he carried out the post mortem of the deceased where he was found to have two stab wounds on the parts of the body as the eye-witnesses gave in their evidence---Said witness also examined and treated injured / eye-witnesses who were also found to have incised wound injuries which were consistent with knife injuries like the deceased---Eye-witness/injured was also examined and treated for a head wound which was consistent with his evidence concerning his injury---Injury of eye-witness was also consistent with his evidence of being stabbed---Circumstances established that the prosecution had proved its case against the accused, however, motive had not been proved, therefore the death sentence was reduced to imprisonment for life, in circumstances---Appeal was dismissed with said modification in sentence.

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

----Ss. 302, 324, 337-A(i), 337-F(i), 337-F(ii), 504 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-mudihah, badiah, intentional insult with intent to provoke breach of peace, common intention---Appreciation of evidence---Sentence, reduction in---Recovery of weapon of offence on the instance of accused---Reliance---Scope---Prosecution case was that the accused party while armed with deadly weapons assaulted on complainant party, due to which son of complainant died while complainant and his three companions received injuries on their body---Accused took the police where he had hidden the murder weapon i.e. the knife which was hidden in his house at a place which only he could have known about and as such could not have been foisted by the police---Said knife was stained with blood---No enmity had been suggested against any Police Officer and or the mashir and as such neither the police nor the mashir had any reason to falsely implicate the accused in the case and as such their evidence could be safely relied upon---Circumstances established that the prosecution had proved its case against the accused, however, motive had not been proved, therefore the death sentence was reduced to imprisonment for life, in circumstances---Appeal was dismissed with said modification in sentence.

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

----Ss. 302, 324, 337-A(i), 337-F(i), 337-F(ii), 504 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-mudihah, badiah, intentional insult with intent to provoke breach of peace, common intention---Appreciation of evidence---Sentence, reduction in---Minor contradictions--- Scope---Prosecution case was that the accused party while armed with deadly weapons assaulted on complainant party, due to which son of complainant died while complainant and his three companions received injuries---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, however, motive had not been proved, therefore the death sentence was reduced to imprisonment for life, in circumstances---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.

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

----Ss. 302, 324, 337-A(i), 337-F(i), 337-F(ii), 504 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-mudihah, badiah, intentional insult with intent to provoke breach of peace, common intention---Appreciation of evidence---Sentence, reduction in---Police witnesses---Reliance---Scope---Prosecution case was that the accused party while armed with deadly weapons assaulted on complainant party, due to which son of complainant died while complainant and his three companions received injuries on their body parts---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 knife 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, however, motive had not been proved, therefore the death sentence was reduced to imprisonment for life, in circumstances---Appeal was dismissed with said modification in sentence.

Mustaq Ahmed v. The State 2020 SCMR 474 rel.

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

----Ss. 302, 324, 337-A(i), 337-F(i), 337-F(ii), 504 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-mudihah, badiah, intentional insult with intent to provoke breach of peace, common intention---Appreciation of evidence--- Related witnesses---Phenomenon of substitution---Prosecution case was that the accused party while armed with deadly weapons assaulted on complainant party, due to which son of complainant died while complainant and his three companions received injuries on their body parts---Father who was an eye-witness would not let the murderer of his son go scot free by substituting him with an innocent person/accused---Circumstances established that the prosecution had proved its case against the accused, however, motive had not been proved, therefore the death sentence was reduced to imprisonment for life, in circumstances---Appeal was dismissed with said modification in sentence.

Allah Ditta v. State PLD 2002 SC 52 rel.

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

----Ss. 302, 324, 337-A(i), 337-F(i), 337-F(ii), 504 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-mudihah, badiah, intentional insult with intent to provoke breach of peace, common intention---Appreciation of evidence---Sentence, quantum of---Scope---Prosecution case was that the accused party while armed with deadly weapons assaulted on complainant party, due to which son of complainant died while complainant and his three companions received injuries on their body parts---Prosecution had failed to prove the motive for the murder, which justified reduction in sentence from the death penalty to the alternate sentence of life imprisonment, especially where the accused had spent a long period in custody---Accused had been in custody for over nineteen years---Sentence of accused was reduced from death to the alternate sentence of life imprisonment, in circumstances---Appeal was dismissed with said modification in sentence.

Hameedullah Dhari for Appellant.

Fayaz Hussain Saabki, A.P.G., Sindh for the State.

Bilawal Ali Ghunio for the Complainant.

2023 Y L R 1431

[Sindh]

Before Muhammad Shafi Siddiqui, J

MAQBOOL AHMED SOLANGI---Plaintiff

Versus

BOARD OF REVENUE through Chairman and others---Defendants

Suit No. 2299 and C.M.As. Nos. 15240 and 15768 of 2016, decided on 03rd November, 2022.

Specific Relief Act (I of 1877)---

----Ss.39, 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for cancellation of documents, declaration and permanent injunction---Interim injunction, refusal of---Prima facie case, absence of---Plaintiff claimed to be owner of a portion of suit plot---Validity---Defendants acquired title from their predecessor in year 2012---Previous owner had acquired title in year 1961 which was renewed on requisite payment through challan dated 03-09-2012, followed by letter dated 18-09-2012 confirming the renewal, in favour of successors/legal heirs of previous owner---Copies of paid challan and mutation/extract from the property register were available in file---Defendants were bona fide purchasers of property---Plaintiff had no prima facie case in his favour and defendants had registered instruments in their favour who acquired their title after a long drawn litigation---Other two ingredients for grant of injunction i.e. balance of inconvenience and irreparable loss also did not exist in plaintiff's favour---Application did not merit interim injunction in view of the situation and chronological disclosure of the events in respect of the property in question---Application was dismissed, in circumstances.

Abdul Wahab Baloch for Plaintiff.

Shaharyar Mehar, Assistant Advocate General.

Dhani Bakhsh Lashari for Sindh Building Control Authority/Defendant No.2.

Muhammad Yasin Azad along with Barrister Muhammad Sarmad Khan for Defendant No.7.

Zia-ul-Haq Makhdoom along with Fatima Ashfaq and Kanza Usman for Defendants Nos. 9 to 12.

2023 Y L R 1436

[Sindh]

Before Mohammad Karim Khan Agha and Abdul Mobeen Lakho, JJ

WAQAF-UL-NABI and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 361 and Confirmation Case No. 14 of 2020, decided on 12th April, 2021.

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

----Ss. 302(b), 324, 392, 397 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Delay of three and half hours in lodging FIR---Effect---Accused were charged that they in furtherance of common intention duly armed with pistols snatched cash and mobile phones from complainant party and ran away, complainant party chased them, they made firing upon complainant party, due to which one person died---Record showed that the FIR was lodged on the same day and the slight delay in lodging it had been explained by the facts and circumstances of the case whereby the deceased was shot and needed to get to hospital in order to save his life---Complainant reported the incident to a passing police mobile en route to the hospital a few minutes after the incident, leaving no room for the complainant to cook up a false case with the police after consultation and indeed the police gave chase to the persons on motor bike who had just recently passed them who had robbed and shot the deceased and robbed and attempted to kill the complainant and eye-witness who was sitting in the Prado when they were robbed and were present during the chase when the deceased was shot---Complainant then proceeded to the civil hospital where the deceased received first aid before being sent to hospital where he expired at 11.57 p.m.---FIR was lodged at 2.30 p.m. on the same day shortly after the deceased received first aid treatment at the hospital---No enmity existed between the complainant and the accused and thus he had no reason to implicate them in a false case---If the complainant wanted to falsely implicate the accused in the FIR he would have done so by naming them---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 324, 392, 397 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Identification of accused---Scope---Accused were charged that they in furtherance of common intention duly armed with pistols snatched cash and mobile phones from complainant party and ran away, complainant party chased them, they made firing upon complainant party, due to which one person and died---Incident was a day light occurrence and the accused's faces were un-muffled---Robbery from three people would have taken at least 2 to 5 minutes and as such the eye-witness would have got a good look at the accused---Eye-witness again saw the accused in hospital about two hours later for a long while at close range at the hospital and thus he was easily able to identify them as the persons who had robbed them and fired on the deceased, therefore no identification parade was required, even otherwise both the accused were injured and needed medical treatment and as such it was not possible to hold an identification parade immediately after their arrest---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

Ajmal Badshah v. State 1993 PCr.LJ 738; Dadullah and another v. The State 2015 SCMR 856; Zahid Imran and others v. The State and others PLD 2006 SC 109 and Muhammad Afzal and 2 others v. The State 2003 SCMR 1678 ref.

Rafaqat Ali and others v. The State 2016 SCMR 1766 rel.

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

----Ss. 302(b), 324, 392, 397 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Statement of eye-witness---Scope---Accused were charged that they in furtherance of common intention duly armed with pistols snatched cash and mobile phones from complainant party and ran away, complainant party chased them, they made firing upon complainant party, due to which one person died---In the present case, eye-witness was not a chance witness, as he was the witness who was actually robbed by the accused and gave chase when the deceased was shot by the accused---Eye-witness had no enmity with the accused and no reason to falsely implicate them in the case---Evidence of said witness was not dented despite a lengthy cross-examination and largely reflected that of his FIR and there had been no significant improvements in the same so as to render his evidence unreliable---Evidence of eye-witness was found to be reliable, trustworthy and confidence inspiring especially in respect of the correct identification of the accused as the persons who robbed him and the others and shot at them which led to the death of the deceased---Other eye-witness corroborated said eye-witness in all material respects---Said witness was named in the FIR as an eye-witness shortly after the incident and gave his S. 161 Cr.P.C. eye-witness statement promptly which left no room for concoction and there had not been any significant improvements in his evidence so as to render it doubtful---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

Muhammad Ehsan v. The State 2006 SCMR 1857; Muhammad Pervez v. State 2007 SCMR 670; Mst. Sughra Begum v. Qaiser Pervez 2015 SCMR 1142 and Farooq Khan v. The State 2008 SCMR 917 rel.

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

----Ss. 302(b), 324, 392, 397 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Recovery of crime empties and cash on the pointation of accused---Effect---Accused were charged that they in furtherance of common intention duly armed with pistols snatched cash and mobile phones from complainant party and ran away, complainant party chased them, they made firing upon complainant party, due to which one person died---Cell phones and cash belonging to the accused were recovered from a hidden place by the police on the pointation of the accused which only the accused would have known about---Four empties were recovered from the area where the Prado was chasing the motor bikes and from where the culprits fired at the complainants party which led to the gunshot wound to the head of the deceased who later died on account of that injury for which there was a positive Forensic Science Laboratory Report---Numerous empties were also recovered from the area of the encounter (pistol, SMG and MP5 used by the police), which resulted in a 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.

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

----Ss. 302(b), 324, 392, 397 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Minor contradiction---Scope---Accused were charged that they in furtherance of common intention duly armed with pistols snatched cash and mobile phones from complainant party and ran away, complainant party chased them, they made firing upon complainant party, due to which one person was hit and died---All the prosecution 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 a reasonable doubt---Appeal against conviction was dismissed accordingly.

Zakir Khan v. State 1995 SCMR 1793 and Khadim Hussain v. The State PLD 2010 SC 669 rel.

Syed Imtiaz Ali Shah for Appellants.

Rahat Ahsan, Additional Prosecutor General and Muhammad Iqbal Awan, Deputy Prosecutor General for Respondents.

2023 Y L R 1449

[Sindh]

Before Aftab Ahmed Gorar, J

NAVEED AHMED---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 957 of 2021, decided on 16th August, 2021.

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

----S. 498---Penal Code (XLV of 1860), Ss. 420, 406 & 34---Cheating and dishonestly inducing delivery of property, criminal breach of trust and common intention---Pre-arrest bail, refusal of---Failure to join investigation---Misuse of bail facility---Involvement of accused in cases of similar nature---Scope---Accused sought pre-arrest bail in an FIR lodged under Ss. 420, 406 & 34, P.P.C.---Admittedly, accused had not joined the investigation and misused the concession of pre-arrest bail as allegations of issuing threats were made by the complainant---Accused was a habitual offender of committing such type of offences and was involved in number of cases---Name of accused appeared in the FIR and he had not uttered a single word as to why he was falsely involved in the case---Prima facie, reasonable grounds were available for believing that the accused had committed the alleged offence---Ingredients for grant of pre-arrest bail were missing in the case---Petition for grant of pre-arrest bail was dismissed, in circumstances.

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

----S. 498--- Pre-arrest bail--- Scope---Grant of bail to an accused required in a cognizable and non-bailable offence prior to his arrest is an extraordinary judicial intervention in an ongoing or imminent investigative process---Such clogs the very mechanics of State authority to investigate and prosecute violations of law designated as crimes---To prevent arrest of an accused where it is so required by law is a measure with far reaching consequences that may include loss or disappearance of evidence---Statute does not contemplate such a remedy and it was judicially advented way back in the year 1949 in the case of 'Hidayat Ullah Khan v. The Crown' [PLD 1949 Lahore 21] with purposes sacrosanct and noble, essentially to provide judicial refuge to the innocent and the vulnerable from the rigors of abuse of process of law; to protect human dignity and honour from the humiliation of arrest intended for designs sinister and oblique---Remedy oriented in equity cannot be invoked in every run of the mill case, prima facie supported by material and evidence, constituting a non-bailable/cognizable offence, warranting arrest, an inherent attribute of the dynamics of Criminal Justice System with a deterrent impact: it is certainly not a substitute for post-arrest bail.

Ghulam Farooq Channa v. Special Judge ACE (Central-I) Karachi and another PLD 2020 SC 293 ref.

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

----S.497---Bail---Tentative assessment---Scope--- Court, for deciding bail application, has to observe tentatively and deeper appreciation of evidence is not required.

Saleh Muhammad v. The State PLD 1986 SC 211 and The State v. The Zubair and 4 others PLD 1986 SC 163 ref.

Farhan Zia Abrar along with Applicant.

Siraj Ali Chandio, Asstt: Prosecutor General, Sindh for the

State.

Complainant present in person.

I/O SIP Allah Rakhio Gabol, Police Station Baloch Colony,

2023 Y L R 1452

[Sindh (Sukkur Bench)]

Before Fahim Ahmed Siddiqui and Khadim Hussain Tunio, JJ

VICKY KUMAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-154 of 2019, decided on 17th November, 2020.

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

----S.9(c)---Possession of Narcotics---Appreciation of evidence---Prosecution case was that 35 kilograms charas was recovered from the possession of the accused---Record showed that the prosecution witnesses were in comfortable unison on all the salient features regarding interception of the huge quantity of charas as well as all the steps taken subsequently---In the present case the whole recovered property was sealed and sent to the Chemical Examiner, which was found being sufficient exercise to constitute forensic proof---At the time of arrest, the accused was standing with a nylon plastic bag, wherein 35 kilograms of charas was secured, therefore, he was responsible for the same alleged to have been secured from his possession---Report of Chemical Examiner available on the record fully corroborated the evidence of both the prosecution witnesses, whose stand was in nexus with the Chemical Examiner's Report---Record transpired that charas was secured from the nylon bag and the recovered case property was separately sealed and sent to Chemical Examiner, who did not find any tampering with the sealed parcel of the contraband so recovered from the accused, hence, the Report of Chemical Examiner came in positive---All the witnesses had deposed that the case property in court was the same and they were at no point cross-examined on the same point by the defence---Charas so recovered from the possession of the accused had been proved to the extent of realization---Circumstances established that the prosecution had successfully proved its case against the accused, which did not require any interference---Appeal against conviction being meritless was dismissed, in circumstances.

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

----S. 9(c)---Possession of Narcotic---Minor contradictions in the statements of witnesses---Scope---Technicalities of procedural nature or otherwise were to be overlooked in the larger interest of the country---If the case stood proved the approach of the court was to be dynamic and pragmatic, in approaching true facts of the case and drawing correct and rational inferences and conclusions while deciding such type of cases---Court was to consider the entire material as a whole and if it was convinced that the case was proved then conviction be recorded notwithstanding any procedural defect---Minor discrepancies in the evidence of the raiding party do not shake its trustworthiness.

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

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Defence plea---Scope---Prosecution case was that 35 kilograms of charas was recovered from the possession of the accused---Accused alleged that charas had been foisted upon him due to his refusal to pay extort money---Said plea appeared to be afterthought, which had rightly been disbelieved by the Trial Court---Accused had failed to produce any valid proof regarding his claim---Accused examined his mother, her mere statement was of no consequence to the prosecution case---Accused was arrested by the Police Officials and from his exclusive possession a huge quantity of charas was recovered and it would be enough for a prudent mind to realize that such huge quantity of contraband could not be foisted upon the accused---Circumstances established that the prosecution had successfully proved its case against the accused, which did not require any interference---Appeal against conviction being meritless was dismissed, in circumstances.

Shazia Bibi v. The State 2020 SCMR 460 rel.

(d) Criminal trial---

----Witness--- Police witness--- Scope---Police Officials are as good witnesses as any other private witnesses and their evidence is subject to same standard of proof and the principles of the scrutiny as applicable to any other category of witnesses---In absence of any animus, infirmity or flaw in their evidence, their testimony can be relied upon without demur.

Izat Ullah and another v. The State 2019 SCMR 1975 and Hussain Shah and others v. The State PLD 2020 SC 132 rel.

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

----S. 9(c)--- Control of Narcotic Substances (Government analysts) Rules, 2001, Rr. 4 & 5---Possession of Narcotic---Appreciation of evidence---Delay in sending samples of contraband for chemical analysis---Effect---Scope---Prosecution case was that 35 kilograms of charas was recovered from the possession of the accused---Said rules were directory in nature and did not render the recovered sample untrustworthy if the span of 72 hours had passed---Furthermore, per the Chemical Examiner's Report, the seals were received in intact condition which ruled out any question of tampering---Circumstances established that the prosecution had successfully proved its case against the accused, which did not require any interference---Appeal against circumstances being meritless was dismissed, in circumstances.

The State v. Ishfaque and others 2018 SCMR 2039; Zahid and Riaz Ali v. The State 2020 SCMR 590; Mushtaq Ahmed v. The State and another 2020 SCMR 474 and Matiullah v. The State 2020 SCMR 1222 rel.

Imdad Ali Malik for Appellant.

Muhsin Ali Khan, S.P.P., ANF for the State.

2023 Y L R 1470

[Sindh]

Before Mohammad Karim Khan Agha and Muhammad Saleem Jessar, JJ

Syed ALAM---Appellant

Versus

The STATE---Respondent

Special Criminal Anti.-Terrorism Appeals Nos.D-284, 285 along with Special Criminal Anti.-Terrorism Jail Appeals Nos. 324, 326 and M.A. No.10465 of 2019, decided on 14th April, 2020.

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

----Ss. 324, 353, 427 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, mischief causing damage to the amount of fifty rupees and common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Sentence, reduction in---Prosecution case was that the police party signalled to stop the suspects, but they started firing upon police party with intention to commit their murder, police also made firing in defence---Complainant narrated the whole story of the case as mentioned in the FIR---Mashir, in his evidence, also stated almost similar facts and fully corroborated the version of the complainant---Version of the complainant was also supported by the circumstantial evidence, medical evidence as well as recovery of the firearm weapons from the possession of accused persons---Complainant had also produced roznamcha entry which showed that the complainant along with his subordinates left the police station at the relevant time and date---Timing shown in the roznamcha entry and that shown in the mashirnamas prepared at the spot were matching with each other---Appeal against conviction was dismissed with modification in sentence.

2006 SCMR 1605; 2012 SCMR 428; 1995 SCMR 599; 1995 SCMR 1345; PLD 2006 Kar. 698; 2011 SCMR 1127; 2015 SCMR 1142; 2016 SCMR 274; PLD 2008 SC 1; 2017 MLD 539; 2017 MLD 1097 and 2017 PCr.LJ 605 ref.

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

----Ss. 324, 353, 427 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S. 103---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, mischief causing damage to the amount of fifty rupees and common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Sentence, reduction in---Non-association of private witnesses---Scope---Prosecution case was that the police party signalled to stop the suspects, but they started firing upon police party with intention to commit their murder, police also made firing in defence---Record showed that the prosecution case was supported by the recovery of firearm weapons from the accused---In the present case, defence objected that both mashirs were Police Officials and no independent person of the locality was associated as mashir of alleged arrest and recovery---Place of arrest of the accused and the recovery of pistols from their possession was a katcha road leading towards a village which was an unpopulated area---Although a Flour Mill was allegedly situated there but it had been explained by prosecution witnesses that said Flour Mill was not in working condition, therefore no body could be available inside the said mill---Time of alleged arrest and recovery was also odd hours of the night i.e. 12.10 a.m. and it could not be expected that private persons would be available in such unpopulated area particularly at such odd hours of the night---No question was suggested to the complainant and witness as to whether the place of incident was a populated area or that any private person was available there at the time of alleged arrest and recovery or for that matter whether the complainant made any efforts to associate any private person to act as mashir of arrest and recovery or not---Plea taken by defence with regard to violation of S.103, Cr.P.C. was of no help to him/them---Appeal against conviction was dismissed with modification in sentence.

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

----Ss. 324, 353, 427 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, mischief causing damage to the amount of fifty rupees and common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Sentence, reduction in---Recovery of weapons of offence and crime empties---Scope---Prosecution case was that the police party signalled to stop the suspects, but they started firing upon police party with intention to commit their murder, police also made firing in defence---Record showed that pistols were recovered from the possession of accused---Recovery of pistols from the accused persons was also corroborated by Forensic Science Laboratory Report---Said reports showed that all three pistols allegedly recovered from the accused were in working condition and secondly, that six empties of .30 bore pistol allegedly secured from the spot matched with two pistols, allegedly recovered from the possession of accused persons---Said report fully corroborated the prosecution story set up in the FIR as well as in the evidence of prosecution witnesses---Empties allegedly secured from the spot matched with only two pistols and not the third one which most probably would have been in possession of the third accused, who would have been driving the motorcycle---Forensic Science Laboratory Report was fully corroborated the prosecution story and recovery of .30 bore pistol from each of the accused---Appeal against conviction was dismissed with modification in sentence.

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

----Ss. 324, 353, 427 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, mischief causing damage to the amount of fifty rupees and common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Sentence, reduction in---Medical evidence---Scope---Prosecution case was that the police party signalled to stop the suspects, but they started firing upon police party with intention to commit their murder, police also made firing in defence---Record showed that accused sustained injuries during the encounter with police party---Said fact also corroborated the prosecution version, which had been stated in the FIR---Accused, after their arrest, were taken to Medical Centre, out of whom accused sustained injuries on their respective legs and after medical treatment and issuance of medical certificate by Medico-Legal Officer, they were brought at the police station where FIR was lodged by the complainant---Said fact was also corroborated by the medical evidence which showed that accused had sustained one injury each on their right leg---Medico-Legal Officer in his cross-examination stated that both accused had sustained injury from their back side and that the injury seemed to be fresh---Said facts supported the prosecution story---Appeal against conviction was dismissed with modification in sentence.

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

----Ss. 324, 353, 427 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S. 342---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, mischief causing damage to the amount of fifty rupees and common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Sentence, reduction in---Defence plea---Scope---Prosecution case was that the police party signalled to stop the suspects, but they started firing upon police party with intention to commit their murder, police also made firing in defence---Plea taken by the accused in their statements under S.342, Cr.P.C. that they were arrested from their respective houses and booked falsely in the cases, however, in support of such assertion neither they had examined any witness in their defence nor produced any document and even they had not examined themselves on oath as provided under S. 340(2), Cr.P.C. nor had they produced any witness in their defence---Although a suggestion was put by the accused to the complainant and mashir that accused was arrested along with his friend, who was released after obtaining bribe and that accused was falsely implicated in the cases as he could not fulfil the demand of the police, however, said suggestion was denied by the witnesses---Said friend of accused had also not been produced as a defence witness to support the version of accused---Besides, the accused had also not succeeded to prove any enmity with the Police Officials---Appeal against conviction was dismissed with modification in sentence.

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

----S. 7---Penal Code (XLV of 1860), Ss. 324, 353, 427 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, mischief causing damage to the amount of fifty rupees and common intention, possessing illicit weapon---Appreciation of evidence---Act of terrorism---Scope---Prosecution case was that the police party signalled to stop the suspects, but they started firing upon police party with intention to commit their murder, police also made firing in defence---Record showed that the alleged incident was not committed in a manner which could be said to have the tendency of creating terror, sense of fear or insecurity in the minds of the general public as well as psychological impact created in the mind of the society---Prosecution thus had not succeeded in proving commission of offence under S. 7 of the Anti-Terrorism Act, 1997, by the accused---Appeal against conviction was dismissed with modification in sentence.

Province of Punjab through Secretary, Punjab Public Prosecution Department v. Muhammad Rafique PLD 2018 SC 178 and Muhabat Ali and another v. The State 2007 SCMR 142 rel.

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

----Ss. 324, 353, 427 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, mischief causing damage to the amount of fifty rupees and common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Mitigating circumstances---Scope---Prosecution case was that the police party signalled to stop the suspects, but they started firing upon police party with intention to commit their murder, police also made firing in defence---In the present case, certain mitigating circumstances were found, which warranted reduction of sentences awarded by the Trial Court for the aforesaid offences---Admittedly, there was ineffective firing and none of the members of police party had sustained any injury, even no fire shot hit the police vehicle---Besides, while in running position on a motorcycle it was very difficult to fire upon Police Officials, who admittedly were inside the police mobile at the time when the accused started firing, so that it could hit on any vital part of their body which might cause their death which was the main ingredient of S. 324, P.P.C.---Record failed to show as to which of the accused was driving the motorcycle because it was nearly impossible for the accused who was driving the motorcycle to have fired upon the police party---Even from the perusal of Forensic Science Laboratory Report, it was clear that the empties secured from the place of incident matched only two pistols and not three, meaning thereby that only two accused who were sitting on the rear side of the driver had opened fire upon the police party---According to complainant and mashir at the time when the injured accused were being taken to hospital, blood was not oozing from their injuries, whereas according to Medico-Legal Officer when he examined the injuries of the injured accused blood was oozing from the injuries---Clothes of the injured accused were not secured/sealed by the Medico-Legal Officer and/or the police---Sentences awarded by the Trial Court under S. 7 of Anti-Terrorism Act, 1997, read with S. 324, P.P.C. were set aside, in circumstances, however, accused were convicted for the offence under S.23(1)(a), Sindh Arms Act, 2013 and each of them was sentenced to undergo RI for two years with fine---Conviction and sentence awarded by the Trial Court to the accused for the offence under S. 353, P.P.C. was maintained---Appeal against conviction was dismissed with said modification in sentence.

Saeed-uz-Zaman for Appellant (in Spl. Cr. A.T.As. Nos. D-284 and 285 of 2019).

Iftikhar Ahmed Shah for Respondents (in Spl. Cr. A.T. Jails As. Nos.324 and 326 of 2019).

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

2023 Y L R 1483

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto and Kausar Sultana Hussain, JJ

SAMERO and 3 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. D-39 of 2017 and Confirmation Case No. 12 of 2017, decided on 1st June, 2021.

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

----Ss. 302(b), 147, 148, 149, 114 & 504---Qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly, abettor present when offence is committed, intentional insult with intent to provoke breach of peace---Appreciation of evidence---Sentence, reduction in---Prosecution case was that the accused party while armed with deadly weapon, assaulted on complainant party, due to which two sons and wife of complainant died---Complainant and two witnesses were the eye-witnesses of the incident---Incident occurred in the house of the complainant and it was day time incident, thus, there was no question of mistaken identity---Both the parties resided in the same vicinity---Evidence of eye-witnesses was corroborated by the medical evidence---Despite lengthy cross-examination, not a single major contradiction came on record, certain minor contradictions had come on record, which could easily be ignored because such minor contradictions would not be fatal to the case of prosecution---Record showed that eye-witnesses had no motive to falsely implicate the accused in the case---Present case was not the case of old murderous dispute between the parties but incident occurred on cattle trespass---Defence had not pressed the appeal on merits but prayed for reduction of death sentence mainly on the ground that prosecution failed to prove the motive at the trial---In the FIR motive as set up was cattle trespass but complainant in his evidence had not mentioned on which date and time cattle of accused trespassed in his lands---Complainant asserted motive in FIR but failed to prove at trial---Other eye-witnesses of the incident had also failed to mention about the motive in their evidence---Investigating Officer had also failed to interrogate/investigate the motive for the commission of the offence---Trial Court in its judgment had clearly mentioned that prosecution had failed to prove the motive at the trial---Motive alleged for triple murders was too feeble---Even otherwise, incident occurred on cattle trespass, it was common in village life and weapons used were lathis, rods and hatchets therefore, having regard to the facts and circumstances of the case, there were multiple factors for reducing sentence of death to imprisonment for life---Maintaining the convictions, death penalty of the accused was reduced to imprisonment for life, in circumstances.

Mst. Nazia Anwar v. The State and others 2018 SCMR 911 ref.

Ghulam Mohy-ud-Din alias Haji Babu and others v. The State 2014 SCMR 1034 rel.

(b) Criminal trial---

----Motive--- Scope--- If prosecution asserted a motive but failed to prove the same then such failure on the part of prosecution might react against a sentence of death.

Mst. Nazia Anwar v. The State and others 2018 SCMR 911 rel.

Omparkash H. Karmani for Appellants.

Ghulamullah Chang for the Complainant.

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

2023 Y L R 1493

[Sindh (Sukkur Bench)]

Before Nazar Akbar and Muhammad Faisal Kamal Alam, JJ

ALI GOHAR DAHRI and others---Petitioners

Versus

NATIONAL ACCOUNTABILITY BUREAU through Chairman, Islamabad and 3 others---Respondents

Constitution Petitions Nos. D-3283 of 2016, D-618 of 2019 and D-481 of 2020, decided on 30th March, 2021.

National Accountability Ordinance (XVIII of 1999)---

---S. 9---Constitution of Pakistan, Art. 199---Corruption and corrupt practices---Bail, grant of---Rule of consistency--- Completion of investiga-tion---Accused persons sought bail in a reference filed by National Accountability Bureau---Case against accused persons was that they, in connivance with each other, illegally appointed seventy-eight persons in District Health Office without issuance of advertisement and formation of District Recruitment Committee---Role assigned to the accused persons was similar to the other accused persons who had been given the concession of bail---Investigation had been completed and there was no likelihood that the accused could either tamper with the evidence or influence the witnesses---Accused who was District Health Officer at the time was one of the decision makers in the entire episode, and his role, obligation and responsibility was different from other co-accused---Accused persons were admitted bail subject to furnishing of solvent surety in the sum of Rs. 2,00,000/- while the bail of District Health Officer was held to be contingent upon furnishing of solvent surety in the sum of Rupees Five Million.

The State and others v. M. ldrees Ghauri and others 2008 SCMR 1118; Pakistan International Airlines Corporation through Chairman and others v. Shahzad Farooq Malik and another 2004 SCMR 158 and The State v. Anwar Saif Ullah Khan PLD 2016 SC 276 distinguished.

Shahid Ali K. Memon for Petitioners (in C. P. No. D-3283 of 2016).

Nisar Ahmed Bhanbhro for Petitioners (in C. P. No. D-618 of 2019).

Masood Rasool Babar Memon for Petitioners (in C. P. No. D-481 of 2020).

Muhammad Zubair Malik, Special Prosecutor NAB for Respondents

2023 Y L R 1500

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

MEHAR ALI SOLANGI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 16 of 2021, decided on 7th April, 2022.

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

----S. 409---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust by public servant, criminal misconduct---Appreciation of evidence---Benefit of doubt---Delay of three years in lodging the FIR---Effect---Accused being public servant was charged for committing criminal breach of trust and criminal misconduct---Record showed that FIR against the deceased accused was lodged after a delay of about three years---From the deposition of Armour, it transpired that the subject weapons were checked in the year 2008 (even no date and month was mentioned); however, the FIR was lodged in the year 2011---For such a long period there was no explanation whatsoever---FIR must be lodged with promptitude in order to give it reliability and credibility unless such delay could be explained---FIR was regarded as the cornerstone of the prosecution case which got the ball rolling in a criminal case---If there was a flaw in lodging of the FIR, like delay in filing the same, then the same would go to the root of the case and a doubt was created in the prosecution case qua the accused, as in that case possibility of consultation and conspiracy could not be ruled out---Said delay in the present case, where the accused alleged in his S. 342, Cr.P.C. statement that the officials were inimical to him, was all the more fatal to the case of the prosecution---Circumstances established that the prosecution had not been able to successfully prove the charge against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Mehmood Ahmed and others v. The State 1995 SCMR 127 rel.

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

----S. 409---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust by public servant, criminal misconduct---Appreciation of evidence---Benefit of doubt---Scope---Accused being public servant was charged for committing criminal breach of trust and criminal misconduct---In the present case, the main witness, who was Armour, had clearly deposed in his examination-in-chief that his statement was not recorded by the Investigating Officer---Even the said witness was not in a position to disclose the specific number or description of the weapons allegedly changed or misappropriated by the accused nor such weapons were produced by the prosecution---During his cross-examination, said witness stated that the property was not sealed at police station---Although, said witness stated that entry with regard to checking of weapons was made, but the same was not produced in Court during evidence---Further, said witness had admitted that he had no certificate from any competent institution regarding checking of ammunition, however, time and again he said that he issued certificates in respect of weapons---Said witness did not produce any certificate from any Ballistic Expert in respect of the weapons which were found defective during inspection---Moreover, it was also necessary to have produced a report that those weapons were handed over to the accused complete in all respects---In the absence of such report it was impossible to attribute any misappropriation to the accused---Other witness clearly stated that he was not the eye-witness of the alleged incident---However, said witness stated that it was mentioned in the report of DSP and Arms Expert while it had come in the evidence of Armour that the weapons were not sent to any Ballistic Expert and he also admitted that he was not a qualified person in respect of weapons---Though, the inspection of weapons was allegedly carried out in 2008, the statement of this witness was recorded in the year 2011---Question as to why the FIR was not registered immediately and without any delay, had not been explained by the prosecution---Trial Court did not take into consideration the deposition of witness/ ASI, who had clearly stated that there was dispute between the accused and Police Constable with regard to certain bullets, as said Police Constable was demanding fresh bullets which the accused refused, which created a rift between them and thereafter, said Police Constable submitted his complaint to the RPO---Entire evidence adduced by the prosecution witnesses before Trial Court revealed that none of them deposed that they allegedly had seen the accused whilst committing the offence by changing spare parts of such weapons and subsequently same were sold out or kept by him for his personal use---No one had deposed that the amount allegedly entrusted to him was in (what)shape, whether it was in cash or (in the form of) any instrument---Moreover, the use of such alleged misappropriated amount was also not found by the Inquiry Officer to believe that the accused had misappropriated the funds as well as (the) weapons allegedly entrusted to him---Even no list/charge-sheet was produced or exhibited to show that certain amount including weapons were entrusted to the accused during his posting as WHC and that subsequently (same were) misappropriated by him---In absence of any recovery or concrete cum-tangible evidence the accused could not be held responsible for the alleged misappropriation, therefore, charge under S. 409, P.P.C. was not established by the prosecution---Circumstances established that the prosecution had not been able to successfully proved the charge against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Dr. Ghulam Hussain and others v. The State 1971 SCMR 35; Mukaram Khan v. The State and another 2021 MLD 176; Sheikh Iqbal Azam Farooqui through Legal Heirs v. The State through Chairman NAB 2020 SCMR 359 and Bashir Ahmad Malik v. The State 1988 PCr.LJ 1693 ref.

(c) Criminal trial---

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

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Athar Abbas Solangi for Appellant.

Ali Anwar Kandhro, Addl. Prosecutor General, Sindh for the State.

2023 Y L R 1510

[Sindh]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

JAMSHED KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 245 of 2019 and Confirmation Case No. 5 of 2019, decided on 29th January, 2021.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Ocular account---Accused was charged that he along with his co-accused made firing upon the complainant party, due to which the mother and brother of the complainant were hit and died, whereas the sister of the complainant received injuries---Ocular account of the incident had been furnished by complainant and his injured sister---Record showed that evidence of complainant and his injured sister was natural, credible and trustworthy---Injured lady was the wife of the accused---In her evidence before Trial Court, injured witness narrated true picture of the incident---Said injured witness was cross-examined by the defence at length, but not a single infirmity in her statement came on record--- Complainant, another eye-witness of the incident, had stated the whole story of the case---Defence cross-examined the said witness on various aspect of the case, but his presence in the house at the relevant time could not be doubted---Defence had not denied presence of injured witnesses at the spot---Circumstances established that there was no reason, to interfere in the conclusion arrived at by the Trial Court in conviction and death sentence awarded to the accused---Appeal against conviction was dismissed, in circumstances.

Bakht Munir v. The State and another 2020 SCMR 588; Kamal-ud-Din v. The State 2020 MLD 2059 and Zahid Iqbal v. The State 2017 SCMR 1543 ref.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Motive was proved---Accused was charged that he along with co-accused made firing upon the complainant party, due to which the mother and brother of the complainant were hit and died, whereas the sister of the complainant received injuries on her body part---Motive as set up in the FIR was strained relations between the husband/accused and his wife/injured---Injured lady in her evidence had stated that accused committed murder of his mother, caused injures to her and her brother on account of dispute with her---Complainant had also deposed that motive for the commission of the offence was the differences between his injured sister and the accused---Trial Court had also held that prosecution had succeeded to prove its motive at the trial---Motive asserted by the prosecution in the FIR had been established at trial---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Recovery of blood and crime empties from the spot---Scope---Accused was charged that he along with his co-accused made firing upon the complainant party, due to which the mother and brother of the complainant were hit and died, whereas the sister of the complainant received injuries on her body part---Investigating Officer visited place of wardat on the pointation of a witness and found blood lying on the floor which was collected and sealed it---Said witness handed over three missed live bullets, three empties of .30 bore and two bullets heads to the Investigating Officer---Investigating Officer went to the Hospital, where with the permission of the Medical Officer he recorded statement of injured/brother of the complainant--- According to the Investigating Officer, said injured had expired---Investigating Officer could not record statement of injured sister of complainant as she was unconscious---Investigating Officer sent sealed articles to the expert for chemical report and produced positive report of the Chemical Examiner with regards to the clothes of deceased, the mother of complainant---Investigating Officer was cross-examined by the defence and had denied that proper investigation was not conducted by him---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b), 324 & 34---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, attempt to commit qatl-i-amd, common intention--- Appreciation of evidence--- Defence plea---Scope---Accused was charged that he along with his co-accused made firing upon the complainant party, due to which the mother and brother of the complainant were hit and died, whereas the sister of the complainant received injuries---Accused had alleged that he was present at his work place at the time of occurrence---Accused examined two defence witnesses in his defence and they deposed that accused was working with them---Accused was arrested by police in the case, however, the defence witnesses after arrest of the accused in the case did not appear before Investigating Officer for recording their statements regarding false implication of the accused in the case---Defence witnesses had failed to explain the nature of the job or work which they were performing along with accused at the time of incident---Both defence witnesses had mentioned different places of work---Mere plea of the defence witnesses that the day of occurrence accused was working with them without cogent material was not sufficient and the same appeared to be afterthought---Appeal against conviction was dismissed, in circumstances.

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

----S. 342---Defence plea---Scope---When specific defence plea is raised by the accused, the burden to prove the same lies upon him.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Accused was charged that he along with his co-accused made firing upon the complainant party, due to which the mother and brother of the complainant were hit and died, whereas the sister of the complainant received injuries---Occurrence had taken place in day light and FIR in respect of the offence had been lodged on the same date wherein accused had been mentioned as principal accused---Injured lady was the wife of the accused---Complainant was the brother-in-law of the accused---Ocular account furnished by said eye-witnesses had received full support from medical evidence---Crime weapon could not be recovered from the accused as he absconded away for pretty long time and challan was submitted under S. 512, Cr.P.C.--- Eye-witnesses had made consistent statements and availability of the injured witness at the scene of the crime was established due to injuries---Trial Court had assessed and evaluated the evidence in some detail and came to the conclusion regarding guilt of the accused having been established beyond reasonable doubt---Upon independent evaluation of the evidence, High Court was not able to take a view of the matter different from that taken by the Trial Court---Accused had demonstrated extreme barbarity by using a pistol upon his wife, mother-in-law and brother-in-law and took away baby of 6/7 months---Accused had committed murder of his mother-in-law and caused injuries to witnesses, thus, he deserved no sympathy in the matter of his sentence---Usual wages of a crime of murder was death and in the peculiar circumstances of the case the accused deserved no less---Appeal against conviction was dismissed, in circumstances.

Zahid Iqbal v. The State 2017 SCMR 1543 rel.

Saifullah Khan Afridi for Appellant.

Ali Haider Saleem and Muhammad Iqbal, Awan Deputy Prosecutors General Sindh for Respondent.

2023 Y L R 1530

[Sindh (Larkana Bench)]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

ABDUL SATTAR BANGULANI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-51 and Confirmation Case No. 7 of 2018, decided on 19th January, 2021.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Prompt FIR---Scope---Accused was charged that he and co-accused in furtherance of common intention committed murder of the son of complainant on family dispute---Record showed that the FIR in respect of the incident was filed within 45 minutes of the incident---Such prompt filing of the FIR ruled out the possibility of the complainant concocting a false case against the accused with the police or any other third party---Even otherwise the complainant had no enmity with the accused and had no reason to falsely implicate him in the case---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, sentence was reduced from death penalty to imprisonment for life---Appeal against conviction was dismissed with modification in sentence.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Accused was charged that he and co-accused in furtherance of common intention committed murder of the son of complainant on family dispute---Ocular account supported by medical evidence---Scope---Ocular account of the incident had been furnished by two eye-witnesses including complainant---Record showed that it was a day light incident and complainant knew the accused as prior to that incident a matrimonial dispute had arisen between their families as mentioned in the FIR---Accused was named in the FIR with the specific role of shooting the son of complainant in the abdomen with a pistol---First Information Report having been registered in less than one hour after the incident so there was no time for the complainant to cook up any false story or not to correctly identify the accused---No identification parade was required especially as complainant personally got hold of the accused and took him along with the pistol to the police station and as such, no case of mistaken identity arose---Accused had a motive to kill the deceased because of an old family matrimonial dispute---Evidence of complainant was not dented despite lengthy cross-examination---Evidence of said witness was reliable, trustworthy and confidence inspiring and accused could be convicted on his evidence alone--- Eye-witness corroborated complainant in all material respects---Said eye-witness was named in the FIR shortly after the incident and gave his statement under S. 161, Cr.P.C. on the same day---Medical evidence of two Medical Officers supported the prosecution evidence as they respectively confirmed that the deceased was initially brought to the hospital with a firearm injury in the abdomen which injury later led to his death---All the witnesses were consistent in their evidence and even if there were some contradictions in their evidence, they were of 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---Father would not let the murderer of his son go scot free by substituting him with an innocent person---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, sentence was reduced from death penalty to imprisonment for life---Appeal against conviction was dismissed with modification in sentence.

Mehrban v. Abdul Hamid alias Majid and 8 others PLD 1983 SC 117; Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812; Zarshad v. Bahadur Khan and others 1972 SCMR 644; Muhammad Asif v. The State 2017 SCMR 486; Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596; Haleem and others v. The State 2017 SCMR 709; Muhammad Ayub alias Nikka v. The State PLD 1983 SC 27; Muhammad Akram v. The State 2009 SCMR 230; Sikander Ali Lashari v. The State 2020 YLR 2543; Farooq Khan v. The State 2008 SCMR 917; Shamshad Ali v. The State 2011 SCMR 1394; Muhammad Mumtaz and another v. The State and another 2012 SCMR 267 and Haq Nawaz v. The State 2018 SCMR 21 ref.

Muhammad Ehsan v. The State 2006 SCMR 1857 and Zakir Khan v. State 1995 SCMR 1793 rel.

(c) Criminal trial---

----Witness---Related witness---Reliance---Scope---Evidence of related witness could not be discarded unless there was some ill will or enmity between the witnesses and the accused.

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

----Ss. 302(b) & 34--- Qatl-i-amd, common intention--- Appreciation of evidence--- Sentence, reduction in---Recovery of weapon and crime empties---Scope---Accused was charged that he and co-accused in furtherance of common intention committed murder of the son of complainant on family dispute---Record showed that on his arrest at the spot a .30 bore pistol was recovered from the accused---Two empties were recovered from the scene of the murder which corroborated the fact that only two shots were fired, one of which hit the deceased and the other hit the wall---Admittedly, accused was convicted at the Trial Court for having an unlicensed firearm arising from the present incident, which conviction was upheld on appeal although the sentence was reduced---Positive chemical report showed that the blood found at the scene was human blood---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, sentence was reduced from death penalty to imprisonment for life---Appeal was dismissed with modification in sentence.

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

----Ss. 302(b) & 34--- Qatl-i-amd, common intention--- Appreciation of evidence--- Sentence, quantum of---Scope---Accused was charged that he and co-accused in furtherance of common intention committed murder of the son of complainant on family dispute---Record showed that the murder was not carried out in a brutal or heinous manner as only one shot was made on the deceased which led to his death---High Court observed that appropriate sentence in the present case was of life imprisonment as opposed to the death penalty, hence, the accused was sentenced to life imprisonment instead of death penalty---Appeal was dismissed with said modification in sentence.

Safdar Ali Ghouri for Appellant.

Ali Anwar Kandhro, Addl.P.G. for the State.

Shakeel Ahmed G. Ansari for the Complainant.

2023 Y L R 1558

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

TARIQ MEHMOOD---Appellant

Versus

The STATE---Respondent

Special Criminal A.T. Appeal No. 8 of 2020, decided on 31st March, 2022.

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

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping for ransom cases---Delay in lodging FIR---In kidnapping for ransom cases delay in lodging FIR was not always fatal to the prosecution case as in such type of cases the most usual reaction was for the loved ones to try and search out the missing persons before lodging any FIR.

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

----Ss. 302(b), 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abducting for extorting property, valuable security etc., act of terrorism---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of the son of complainant after his kidnapping for extorting money---There was no eye-witness to the abduction or murder of the deceased---No last seen evidence was available in respect of the deceased---Case of the prosecution was that the deceased dressed in his college uniform headed off for College in the morning---Yet it had come on record that there was a strike that day and the College was not open which also begged the question how deceased could have gone shopping when the shops would also have been closed---Prosecution had not proved convincingly that the body which was found was that of the deceased---Apparently deceased was identified by the complainant through pictures of his teeth as his face was unrecognizable---Identification by photos of a person's teeth by a loved one was not a meaningful way of identifying a dead person--- Significantly the complainant in his FIR stated that his son was 18 years of age but most other documentary evidence on record placed the deceased as being about 35 years of age which was a significant discrepancy---In fact when the body was later exhumed no DNA match was found between the deceased and the complainant---Medical evidence tended to indicate that the cause of death of the deceased was him being hit by a blunt instrument to the head---However, no recovery was made of any such instrument where the body was found or on the pointation of accused at the time of his arrest---Accused had no linkage/ connection to the place where the body was found---Allegedly the complainant sent a ransom amount by digital transfer but there was no evidence of that whatsoever---Although the complainant and his wife and daughter stated that a ransom demand was made and paid at some other place, no Call Data Record (CDR) was available to support such a demand being made and no recording of such demand was made despite the fact that Citizens-Police Liason Committee (CPLC) had provided the complainant with the relevant recording equipment---No SIM was recovered from the accused during his arrest---No evidence was available as to where the complainant got the alleged five lac ransom from which he allegedly paid the accused and no ransom amount was recovered from 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.

Muhammad Ayaz and others v. The State 2011 SCMR 769; Mian Sohail Ahmed and others v. The State and others 2019 SCMR 956; Javed Khan alias Bacha and another v. The State and another 2017 SCMR 524; Kamal Din alias Kamala v. The State 2018 SCMR 577; Muhammad Fayyaz v. The State 2012 SCMR 522; Muhammad Yameen alias Raja v. The State and others 2009 SCMR 84; Muhammad Afzal alias Abdullah and others v. The State and others 2009 SCMR 436; Nazir Ahmad v. Muhammad Iqbal and another 2011 SCMR 527; Orangzaib v. The State 2018 SCMR 391; Basharat Ali v. Muhammad Safdar and another 2017 SCMR 1601; Muhammad Fazil v. Bashir Ahmad and another 2009 SCMR 1382; Hayatullah v. The State 2018 SCMR 2092; Fazal Subhan and another v. The State and others 2019 SCMR 1027; Sajjan Solangi v. The State 2019 SCMR 872; Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Muhammad Ramzan and 3 others v. The State 2011 YLR 2379; Muhammad Tufail v. The State 2013 SCMR 768; Salman Akram Raja and another v. Government of Punjab through Chief Secretary and others 2013 SCMR 203; Abdul Jabbar and another v. The State 2019 SCMR 129; Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 and Mian Khalid Perviz v. The State through Special Prosecutor ANF and another 2011 SCMR 522 rel.

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

----Ss. 302(b), 365-A & 34---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., act of terrorism--- Appreciation of evidence---Benefit of doubt---Test identification parade---Irregularities---Accused was charged for committing murder of the son of complainant after his kidnapping for extorting money---Allegedly, that the complainant and two other of his family members witnessed the handing over of the ransom to the accused at some other place but admittedly it was dark and no description of the accused was given by any of the three witnesses to the handing over of the ransom---Most surprisingly two of the witnesses who saw the ransom being given to the accused did not appear before the identification parade---What was even of greater significance was that the complainant in his own evidence admitted knowing the accused so how was it possible for him not to recognize the accused and name him to the police especially as he could apparently pick him out at a later identification parade---Said aspect of the case was concealed by the complainant and his other family members from the police which would have negated the necessity of an identification parade---Such conduct in and of itself raised doubt as to the identification of the accused---In the present case, the rules governing a safe identification parade were also largely not followed as for instance all of the dummies were different and not the same which would make the accused stand out---No CNIC's or addresses were taken from most of the dummies---Even in the identification parade the complainant gave no specific role to the accused although such role was later given in evidence by the complainant---Thus, it was doubtful that the complainant correctly identified the accused as the person whom he allegedly handed over the ransom to---Circumstances established that the prosecution had failed to prove its case beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Kanwar Anwaar Ali, Special Judicial Magistrate in the matter of Criminal Miscellaneous Application No.183 of 2019 in Criminal Appeal No.259 of 2018 PLD 2019 SC 488; Azhar Mehmood and others v. The State 2017 SCMR 135; Javed Khan v. State 2017 SCMR 524 and Mian Sohail Ahmed v. State 2019 SCMR 956 rel.

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

----Ss. 302(b), 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abducting for extorting property, valuable security etc., act of terrorism---Appreciation of evidence---Benefit of doubt---Confession of accused before the police---Inadmissible in evidence---Accused was charged for committing murder of the son of complainant after his kidnapping for extorting money---Confession of accused before the police was inadmissible in evidence and the accused was not taken before a Judicial Magistrate to have his confession recorded---Circumstances established that the prosecution had failed to prove its case beyond any shadow of doubt---Appeal against conviction was allowed in circumstances.

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

----Ss. 302(b), 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abducting for extorting property, valuable security etc., act of terrorism---Appreciation of evidence---Benefit of doubt---Recovery of dead body on the disclosure of accused---Inconsequential---Accused was charged for committing murder of the son of complainant after his kidnapping for extorting money---Accused allegedly took the police to the place where the body was discovered---Said fact was irrelevant as the police already knew where that place was and had already removed the body---Circumstances established that the prosecution had failed to prove its case beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Hayatullah v. The State 2018 SCMR 2092 rel.

(f) 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.

Mushtaq Ahmed and Raja Hassan Nawaz for Appellant.

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

2023 Y L R 1582

[Sindh (Sukkur Bench)]

Before Zafar Ahmed Rajput, J

WAZIR ALI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-284 of 2021, decided on 13th September, 2021.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 147, 148, 149 & 337-H---Qatl-i-amd, rioting, armed with deadly weapon, common object and hurt by rash or negligent act---Bail, refusal of---Scope---Accused was nominated in the FIR by name with specific role of causing firearm injury to the deceased on back side of his neck---As per FIR, three accused persons, including the accused, had fired three shots on the deceased and the post-mortem report of the deceased had also suggested three wounds of entry---Enmity between the parties was an admitted fact---Besides the complainant, there were two other eye-witnesses who had fully connected the accused with the commission of alleged offence, which fell within the prohibitory clause of S. 497, Cr.P.C.---Case of co-accused, admitted to post-arrest bail, was on different footings as no specific role had been assigned to him in the FIR---Benefit of rule of consistency was not available to the accused---So far as delay in lodging the FIR was concerned, it had been stated in the FIR that after informing the police through mobile phone and getting conducted the post mortem of the deceased, the complainant had lodged the FIR; hence, plausible explanation prima facie was available on record---Delay in FIR was not ipso facto a ground for the grant of bail---Veracity of plea of alibi would be determined at trial---Bail application was dismissed, in circumstances.

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

----S.497---Bail---Delayed FIR---Scope---Delay in FIR is not ipso facto a ground for the grant of bail.

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

----S. 497---Bail---Further inquiry---Scope---Every hypothetical question which can be imagined does not make it a case of further enquiry simply for the reason that it can be answered by the Trial Court subsequently after evaluation of evidence.

Qurban Ali Malano for Applicant

Asif Ali Jatoi the Complainant.

Shafi Muhammad Mahar, Deputy Prosecutor General, Sindh for the State.

2023 Y L R 1616

[Sindh]

Before Adnan Iqbal Chaudhry, J

TOTAL PARCO PAKISTAN LIMITED through Authorized Officer---Plaintiff

Versus

PAKISTAN CIVIL AVIATION AUTHORITY through Director General, Karachi and 2 others---Defendants

Suit No. 1497 of 2020, decided on 16th November, 2022.

Pakistan Civil Aviation Authority Ordinance (XXX of 1982)---

----S. 11---Specific Relief Act (I of 1877), Ss. 12, 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for specific performance of agreement, declaration and injunction---Interim injunction, refusal of---Lease of land--- Procedure--- Private treaty---Scope---Plaintiff company was aggrieved of refusal of defendant Authority with regard to renewal of lease of land for petrol pump---Validity---Under the erstwhile Land Lease Policy of Civil Aviation Authority, lease expiring after 30 years was not to be renewed by mutual consent but the premises was to be leased after open bidding albeit with a preference to previous lessee if it matched the highest bid---Said policy envisaged that lease by private treaty was restricted to airlines, aviation related training institutes and services, flying clubs, and government/semi-government agencies for official purposes---Plaintiff was not amongst such entities so as to be leased demised premises without a process of open bidding---Letter issued by Civil Aviation Authority valued demised premises at Rs. 65,000/- per square yard---Despite methodology provided in the Policy for fixing value of land proposed to be leased, there was nothing to show how the value of demised premises had been fixed---Purported renewal of lease was not in accord with the Land Lease Policy---Since plaintiff itself sought renewal under Land Lease Policy, it could not attribute want of knowledge of violation to the doctrine of indoor management---Where Board of Civil Aviation Authority did not approve renewal of lease and it was in the knowledge of plaintiff that a further lease of demised premises could only be granted in line with Land Lease Policy, the letter issued by Civil Aviation Authority did not constitute a contract for renewing lease of the demised premises---Plaintiff failed to demonstrate that there was a contract between the parties for renewing lease of demised premises---Plaintiff did not have a prima facie case for grant of temporary injunction---Application was dismissed, in circumstances.

Muhammad Siddiq Muhammad Umar v. Australasia Bank Ltd. PLD 1966 SC 685 Rahat and Company v. Trading Corporation of Pakistan PLD 2020 SC 366 ref.

Abraiz Ali Khan for Plaintiff No. 1.

M.M. Aqil Awan for Plaintiff No.2.

Amna Warsi and Ayesha Warsi along with Muhammad Farooq Afzal, Joint Director Legal, CAA for Defendants Nos. 1-2.

Nemo for Defendant 3.

Rizwan Ahmed Siddiqui, for Applicant/Intervener.

2023 Y L R 1639

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar and Shamsuddin Abbasi, JJ

HIMAT GUL PATHAN and another---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-65 of 2018, decided on 20th April, 2022.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Contradictions in the statements of witnesses---Scope---120 kilograms of charas was allegedly recovered from the trailer of accused persons---Allegedly, there were contradictions in the evidence of two witnesses, in which, one stated that the contraband was weighed through computerized scale and the other said that the contraband was weighed through manual scale---Said contradiction was very minor and immaterial, as the recovery of the contraband had not been denied---Recovery in the case was very huge and it could not be imagined that somebody would foist such huge quantity of charas on somebody just to incarcerate a stranger without any enmity with him/them---Accused did not claim that they had any enmity with the complainant or any of the constables---Minor discrepancies in the evidence of raiding party did not shake their trust-worthiness---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Appeal was dismissed accordingly.

Abdul Ghani v. The State 2019 SCMR 608; Qaiser Khan v. The State 2021 SCMR 363; Mst. Sakina Ramzan v. The State 2021 SCMR 451; Mushtaq Ahmad v. The State 2020 SCMR 474 and Shazia Bibi v. The State 2020 SCMR 460 ref.

State/ANF v. Muhammad Arshad 2017 SCMR 283 and Abdul Ghani and others v. The State and others 2019 SCMR 608 rel.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Safe custody and transmission of samples of the narcotic from the police to the Chemical Examiner---Scope---120 kilograms of charas was allegedly recovered from the trailer of accused persons---No delay in sending the samples to the Chemical Examiner, as the incident occurred at about 7.20 a.m., while the samples were sent to Chemical Examiner on the same day---No question arose of any doubt about safe transmission of the samples of the recovered substance to the office of the Chemical Examiner---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Appeal was dismissed accordingly.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Huge quantity of narcotics was recovered---Scope---120 kilograms of charas was allegedly recovered from the trailer of accused persons---Plea was not taken nor was there any hint that the accused persons had made any claim of enmity against the police---Perusal of the statements of the accused persons recorded under S. 342, Cr.P.C., revealed that bald statements had been made by the accused persons to the effect that they were innocent and that nothing was recovered from them and that charas had been foisted upon them---However, accused persons had not stated anything in their statement with regard to the factum as to how that huge quantity of the charas was put in the trailer---As per the deposition of the complainant and the eye-witness, the contraband was recovered from secret cavities found in the truck trailer---Sole purpose of the movement of the trailer was to transport the contraband in its hidden/secret cavities---Perusal of the cross-examination of the prosecution witnesses revealed that no question was asked about the presence of secret/ hidden cavities in the trailer---Perusal of cross-examination of the witnesses further revealed that a suggestion was put to them that the accused persons were involved in the case due to non-payment of illegal gratification---Plea would have been considered if the recovery of contraband was not in such a huge quantity which, could not possibly be foisted by police on any person just to ask for illegal gratification---Besides, the samples of charas so recovered from them were sent to Chemical Examiner and the report of chemical examiner came in positive---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---Appeal was dismissed accordingly.

Shazia Bibi v. The State (Jail Petition No.847 of 2018) rel.

Irfan Badar Abbasi for Appellants.

Ali Anwar Kandhro, Addl. P.G. for the State.

2023 Y L R 1655

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

ALI SHER BANGULANI and another---Appellants

Versus

The STATE---Respondents

Criminal Appeals Nos. S-76, S-77 and S-78 of 2019, decided on 31st April, 2022.

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

----Ss. 302(b), 324, 353, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Plea of previous empty not established---Accused were charged that they along with their co-accused made indiscriminate firing upon the police party, due to which one Police Constable died whereas three were injured, however police also made firing in retaliation and resultantly one of the accused person was hit and died---Defence objected that accused were arrayed in the case due to enmity---Said objection was a wild and bald allegation and was not supported by any evidence---Even, none of the accused persons, in their statement recorded under S. 342, Cr.P.C., took such plea and they only stated that the police arrayed them to show their efficiency---Record showed that a number of cases were registered against the accused persons, but the same could not prove any enmity between police and the accused persons and, at the most, it could be said that the prosecution was unable to prove its case beyond reasonable doubt in those cases---No plausible explanation as to why the police would involve innocent persons in place of the real culprits, as death of Police Constable had been proved to be unnatural---Appeal against conviction to the extent of accused in question was dismissed.

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

----Ss. 302(b), 324, 353, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Police witnesses, evidence of---Accused were charged that they along with their co-accused made indiscriminate firing upon the police party, due to which one Police Constable died whereas three were injured, however police also made firing in retaliation and resultantly one of the accused person was hit and died---Defence objected that the injured witnesses as well as the deceased were from police and hence biasness on the part of police could not be ruled out---Held, that, it was not a rule of law that in such cases police could not be entrusted with the investigation of the case---However, nothing had been shown or brought on record that the accused persons ever raised such plea before the concerned court by moving an application for transfer of the investigation to any other agency---On the contrary, co-accused was the person, who made indiscriminate firing upon police party, clearly admitting that there was police encounter involving those persons---In police encounters and, particularly those encounters which take place in remote areas, it was police personnel against the accused and there was no third party involved---Thus, naturally the witnesses would be Police Officials only and if their evidence was not believed, particularly when one of their party members was killed in the encounter and others sustained firearm injuries, then the accused could not be convicted at all for their act---Hence, said plea had no force and was rejected---Nothing abnormal was found calling for interference by High Court---Appeal against conviction to the extent of accused in question was dismissed.

Muhammad Riaz v. The State 2018 PCr.LJ Note 179 rel.

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

----Ss. 302(b), 324, 353, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting armed with deadly weapon, unlawful assembly--- Appreciation of evidence--- Recovery of weapon of offence and crime empties---Scope---Accused were charged that they along with their co-accused made indiscriminate firing upon the police party, due to which one Police Constable died whereas three were injured, however police also made firing in retaliation and resultantly one of the accused person was hit and died---Report of Forensic Science Laboratory revealed that the Laboratory received one 7.62 mm bore (SMG) rifle with magazine which was recovered from accused and one 12 bore SBBL Shot Gun (number rubbed) recovered from other accused with some empties---As per the laboratory report, six 7.62 mm bore crime empties were fired from the above-mentioned rifle recovered from accused---In such state of affairs, it became crystal clear that Police Constable was hit by the burst fired by accused from his Kalashnikov, which caused his death---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction to the extent of accused in question was dismissed.

Muhammad Khan v. The State 2020 YLR Note 70; Shafqat Ali and others v. The State PLD 2005 SC 288 and Dadullah and another v. The State 2015 SCMR 856 rel.

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

----Ss. 302(b), 324, 353, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting armed with deadly weapon, unlawful assembly--- Appreciation of evidence---Sentence, reduction in---Accused were charged that they along with their co-accused made indiscriminate firing upon the police party, due to which one Police Constable died whereas three were injured, however police also made firing in retaliation and resultantly one of the accused person was hit and died---Defence objected that injured Police Constable had alleged to have received firearm injury at the hands of other accused, while the medical report stated that he did not suffer any firearm injury, therefore, the case of other accused required deeper appreciation of the evidence on record---However, when the prosecutor was confronted with such position, he was unable to controvert the factual position that from the provisional Medico-Legal Certificate issued by the Medico-Legal Officer in respect of injured Police Constable it revealed that the inured Police Constable had sustained lacerated wound and not firearm injury---About the said wound it had not been stated by Medico-Legal Officer that the same was caused by firearm or that it was through and through like the injuries sustained by deceased Police Constable---Thus, there was no evidence to prove that injured Police Constable sustained firearm injury caused by the other accused---Since other accused had caused no injury to deceased Police Constable or to any other person of the police party; however, he was captured by the police on spot along with offensive weapon, therefore, said accused was acquitted of the charge under S. 302, P.P.C.---Per prosecution case, said accused had allegedly caused gunshot injuries to injured Police Constable, but the medical evidence as available on record did not support the case of prosecution, therefore, charge to the extent of S. 324, P.P.C., against the other accused had also not been established---Consequently, the sentence awarded to the accused in terms of S.324, P.P.C. was also set aside---As far as sentence awarded to the accused in terms of S. 353, P.P.C., was concerned, he was apprehended by the police on the spot along with offensive weapon, hence prosecution had established it's charge against him to the extent of S. 353, P.P.C.---Thus, conviction and sentence of the other accused under S. 353, P.P.C. was maintained---Appeal in respect of said accused was partly allowed to the extent of his conviction awarded under Ss. 302 & 324, P.P.C. and the sentence awarded to him for the said offences were set aside, whereas the conviction and the sentence awarded to him for the offence under S. 353, P.P.C. was maintained.

Asif Ali Abdul Razak Soomro for Appellants.

Ali Anwar Kandhro, Additional Prosecutor General, Sindh for the State.

2023 Y L R 1675

[Sindh (Sukkur Bench)]

Before Khadim Hussain Tunio, J

SAJID ALI and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No .S-143 of 2011, 23rd December, 2021.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of about fourteen hours in lodging FIR---Scope---Accused was charged for committing murder of the brother of complainant by firing---Motive behind the occurrence was that few days prior to the occurrence harsh words were exchanged between accused and deceased---In the present case, there was an inordinate delay of almost 14 hours in the lodging of FIR---No explanation whereof was provided for the same and it held great value in the defence case---Explanation furnished for the said delay was that the complainant was aged and waited for his brother's arrival from other city to lodge the FIR---Such stance in itself appeared to be highly illogical as the least the complainant party could have done was inform the police of the incident promptly and lodged the FIR later on, which would have set the procedural instances off, instead they chose to stay mum and let the body rot at the place of incident---Nonetheless, the delay was undisputed and its explanation was lacking---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

Ayub Masih v. The State PLD 2002 SC 1048 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of prosecution witnesses---Scope---Accused was charged for committing murder of the brother of complainant by firing---Role assigned to the accused was of mere presence at the place of incident while being armed with a hatchet, which too was not recovered by the police---Investigating Officer also found only two footprints at the place of incident whereas the complainant party had alleged the presence of seven culprits---Role of murder of the deceased had been solely attributed to the other accused who allegedly fired at him with a T.T pistol---No corroborative piece of evidence was available with the prosecution to connect the present accused with the alleged offence---Complainant, in his cross-examination, had deposed that in those days of occurrence of instant offence, the crop of cotton was standing in the lands of some body else and it was picking season of the crop and its height was above the length of [a] man---To contradict the same, other witness in his cross-examination deposed that at that time the crop of cotton was not standing at the length above to the height of person---Cotton crop was standing at the height of trunk of (a) man---Said witness denied that the season of crop was picking season---With regard to the distance between the place of incident and nearby village and link road, the complainant had deposed in his cross-examination that the village was situated at the distance of about 80 paces from the place of incident---Said deposition was contradicted by other witness who deposed that the place of occurrence was situated in the lands at the distance of 10/15 paces from metalled road leading towards village---Both the said depositions were contradicted by another witness, who deposed that the place of vardat was situated at the distance of one mile from our village---Complainant, again in his cross-examination, deposed that the place of occurrence was situated 30/40 paces inside the land from link road leading from village to a town---Witness again deposed in the cross-examination that the place of incident was situated at the distance of half mile from the road where murder of deceased took place---Such contradictions had dented the prosecution case enough to warrant an acquittal---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

(c) 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 the brother of complainant by firing---Motive as set up by the prosecution was confusing---Initially, the motive alleged in the FIR by the complainant was that 3 or 4 days prior to the incident, deceased had a heated argument with the accused which left them annoyed and they issued him threats of further consequences---Allegedly, there existed a dispute between the two parties over matrimonial issues as well---With regard to the initial motive, the complainant deposed in his cross-examination that it was a fact that such exchange of hot words between my brother deceased and accused party had not taken place in my presence---In that regard, a witness also deposed that he did not know if a quarrel was created between both the parties---Motive generally did not hold much value but in cases involving murder especially like the one in hand, it held great importance---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

Pathan v. The State 2015 SCMR 315 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Discrepancies in the prosecution evidence---Scope---Accused was charged for committing murder of the brother of complainant by firing---Record showed that the incident had not taken place in a manner as stated by the prosecution---Strong circumstances in the prosecution case were found which exposed reasonable doubt and the prosecution had not proved its case against the accused for the offences charged beyond a reasonable doubt keeping the assertion of the FIR in juxtaposition of the evidence adduced by the prosecution---Involvement of the accused had become dubious and the same could not be termed as normal and routine looking to the discrepancies occurred in the evidence of prosecution witnesses---Accused only shot the deceased once and did not choose to harm the prosecution witnesses and complainant even when the parties were known to each other and knowing fully well that in the case of criminal prosecution, same witnesses would lead to them being hanged for the murder---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

Muhammad Farooq v. The State 2006 SCMR 1707 and Safdar Abbas and others v. The State and others 2020 SCMR 219 rel.

(e) Criminal trial---

----Conviction---Scope---No conviction can be awarded to an accused until and unless reliable, trustworthy and unimpeachable evidence containing no discrepancy casting no cloud over the veracity of prosecution story is adduced by the prosecution.

Tariq Ali Shah and another v. The State and others 2019 SCMR 1391 rel.

(f) Criminal trial---

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

Muhammad Shah v. The State 2010 SCMR 1009 rel.

(g) 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.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Mehfooz Ahmed Awan for Appellant.

Shafi Muhammad Mahar, Deputy Prosecutor General for the State.

2023 Y L R 1702

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

DAD GUL alias MANGHA and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 668, Criminal Acquittal Appeal No.585 and Confirmation Case No. 27 of 2019, decided on 24th February, 2022.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Sentence, reduction in---Delay of about seven hours in lodging the FIR---Scope---Accused was charged for committing murder of the son of complainant by firing on the abetment of co-accused after receiving head money---Record showed that the FIR was lodged with reasonable promptitude being seven hours after the incident whereby the accused was named in the FIR as coming on motor bikes with other named persons and firing on the deceased by firearm which caused his death---Even if there was a slight delay in lodging the FIR that was explained by the fact that the complainant was busy in taking his deceased son first to a hospital and then to other hospital for post mortem before the body was released and thereafter the FIR was lodged---Such an 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, however, his death sentence was reduced to life imprisonment, in circumstances---Appeal was dismissed with said modification in sentence.

Nasir Mehmood v. State 2015 SCMR 423 and Khalid Javed v. State 2003 SCMR 1419 ref.

Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872 rel.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Sentence, reduction in---Ocular account supported by medical evidence---Scope---Accused was charged for committing murder of the son of complainant by firing on the abetment of co-accused after receiving head money---Complainant and his two brothers furnished ocular account of the incident---Said eye-witnesses had correctly identified the accused as being one of the persons who shot the deceased by firearm which lead to his death especially as the accused did not even deny his presence at the scene of the incident either during cross-examination of the witnesses or in his S.342, Cr.P.C. statement---In fact in his S.342, Cr.P.C. statement accused admitted his full participation in the murder of the deceased---Keeping in view the legal position that such evidence was only a rule of caution/ prudence in the face of reliable and trust worthy eye-witness evidence especially as in the case there were three witnesses who had found to share such attribute and had correctly identified the accused as firing upon and causing the death of the deceased---Medical Officer on the day of the incident gave evidence that accused was produced before him in injured condition as a result of that incident which injury he found to have been caused by firearm which corroborated/ supported all the eye-witness evidence that accused fired at the deceased, was injured by firearm and was then taken to hospital where he was arrested after treatment---Although no post mortem was exhibited the memorandum regarding examination of dead body and report of unnatural death with the former quoting the post mortem report carried out by the Medico-Legal Officer that the cause of death was by firearm and it was noted that the deceased was hit by numerous bullets corroborated the eye-witness evidence that the deceased was shot and killed by firearm which issue had not been disputed---Medical evidence supported the ocular evidence---Circumstances established that the prosecution had proved its case against the accused, however, his death sentence was reduced to life imprisonment, in circumstances---Appeal was dismissed with said modification in sentence.

Muhammad Afzal v. The State 2003 SCMR 1678 rel.

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

----Ss. 302, 109 & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Sentence, reduction in---Confessional statement of accused---Scope---Accused was charged for committing murder of the son of complainant by firing on the abetment of co-accused after receiving head money---Accused gave a confession before a Judicial Magistrate---Said Judicial Magistrate was not called to give evidence and as such it could not be said with certainty that the required procedural safe guards were given before recording the judicial confession---Judicial confession appeared to be exculpatory in nature by attempting to blame the co-accused of the present accused and only admitting his presence at the scene and as such placed little, if any, reliance on it---Circumstances established that the prosecution had proved its case against the accused, however, his death sentence was reduced to life imprisonment, in circumstances---Appeal was dismissed with said modification in sentence.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Sentence, reduction in---Non-recovery of weapon of offence from accused---Scope---Accused was charged for committing murder of the son of complainant by firing on the abetment of co-accused after receiving head money---Fact that no recovery was made from the accused was not relevant as the accused was arrested a number of years after the incident and as such he would not have been expected to have the same firearm with him which he would most probably have disposed of---Circumstances established that the prosecution had proved its case against the accused, however, his death sentence was reduced to life imprisonment, in circumstances---Appeal was dismissed with said modification in sentence.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Sentence, reduction in---Minor contradictions in the statements of witnesses---Scope---Accused was charged for committing murder of the son of complainant by firing on the abetment of co-accused after receiving head money---Record showed that 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/evidence and the conviction of the accused---Circumstances established that the prosecution had proved its case against the accused, however, his death sentence was reduced to life imprisonment---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.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Sentence, reduction in---Police witnesses---Scope---Accused was charged for committing murder of the son of complainant by firing on the abetment of co-accused after receiving head money---Police witnesses had no enmity or ill will towards the accused and had no reason to falsely implicate him 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, however, the death sentence was reduced to life imprisonment---Appeal was dismissed with said modification in sentence.

Mushtaq Ahmed v. The State 2020 SCMR 474 rel.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Sentence, reduction in---Substitution---Scope---Accused was charged for committing murder of the son of complainant by firing on the abetment of co-accused after receiving head money---Father would not let the real murderer of his son get away scot free and falsely implicate an innocent person by way of substitution---Circumstances established that the prosecution had proved its case against the accused, however, the death sentence was reduced to life imprisonment---Appeal was dismissed with said modification in sentence.

Muhammed Ashraf v. State 2021 SCMR 758 rel.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Sentence, reduction in---Accused was charged for committing murder of the son of complainant by firing on the abetment of co-accused after receiving head money---Record showed that it was unclear as to who fired the fatal shot which killed the deceased as according to the eye-witnesses all five motor riders fired on the deceased and the medical evidence revealed that the deceased received numerous firearm injuries---In such circumstances, the death penalty might be reduced to life imprisonment---Co-accused who was tried earlier and separately who played the same role as the accused in the murder of the deceased and was convicted on similar evidence was also only sentenced to life imprisonment as opposed to the death penalty---Keeping in view the said two factors the sentence of the accused was reduced from the death penalty to imprisonment for life---Appeal was dismissed with said modification in sentence.

Muhammad Farooq for Appellants (in Criminal Appeal No. 668 and Confirmation Case No. 27 of 2019).

Mohammad Iqbal Awan, Addl. Prosecutor General Sindh for Respondent (in Criminal Appeal No. 668 and Confirmation Case No. 27 of 2019).

Mahmood Habibullah for Appellants (in Criminal Acquittal Appeal No. 585 of 2019).

Mohammad Iqbal Awan, Addl. Prosecutor General Sindh for Respondent No.1 (in Criminal Acquittal Appeal No. 585 of 2019).

Iftikhar Ahmed Shah for Respondents Nos. 2 and 3 (in Criminal Acquittal Appeal No. 585 of 2019).

2023 Y L R 1722

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro, J

SUBHAN ALI and 3 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. S-69 and M.A. No. 2017 of 2020, decided on 23rd December, 2022.

Penal Code (XLV of 1860)---

----Ss. 302(b), 504, 147, 148 & 149---Qatl-i-amd, intentional insult with intent to invoke breach of peace, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Accused were charged for committing murder of the father of complainant---In the present case, the prosecution in order to prove the charge had examined seven witnesses---All the witnesses had been subjected to a lengthy cross-examination but no material contradiction had come on record---Said witnesses had stood ground on all salient features of the case and supported each other regarding the main parts of the incident and nothing in response to the questions in cross-examination had come on record suggesting false implication of the accused persons in the case---Eye-witnesses had been successful in establishing their presence at the spot; seeing the incident; bringing the injured to the hospital, where after he died, and his postmortem was conducted---Police Officials and mashirs had supported arrival of the police at hospital in response to information of the incident communicated by complainant and inspecting the dead body and completing all the formalities---First Information Report was registered on the same day after just 12 hours of the incident, which from the facts of the case appeared to have been consumed by the complainant in taking his injured father to Hospital for treatment, postmortem and brining the dead body to his village, its burial, and in the end, travelling to police station for registration of FIR---Further, in cross-examination nothing had come on record to suggest that nomination of the accused persons in FIR was outcome of any deliberation or consultation by the complainant party or that the accused persons had been substituted with real culprits in the case---No contradiction was found between medical evidence and ocular evidence and both the eye-witnesses had stated that the injured was hit by the accused persons with lathies (sticks) and iron rods which was what had been opined by the doctor in his evidence i.e. presence of lacerated wounds on the body of the victim caused by hard and blunt substance---Witnesses were illiterate and did not have any idea what incised or lacerated wound was and how it was caused---Thus, the witness saying that they were incised wounds was immaterial from the point of view of actual description of the wounds---Last ground taken in defense was that the prosecution was not able to prove the motive---Not proving motive could not be considered as a circumstance undermining prosecution case---However, non-proving of the motive in the cases of capital punishment could be considered as a mitigating circumstance justifying reduction of sentence from death to imprisonment for life, at the most---Accused persons had already been given life imprisonment, therefore, non-establishing the motive part of the story was not fatal to the prosecution case nor was it helpful to the accused persons in any manner to earn acquittal---Appeal against conviction was dismissed, in circumstances.

Wazeer Hussain Khoso for Appellants.

Nazar Muhammad Memon A.P.G. Sindh for the State.

2023 Y L R 1740

[Sindh]

Before Aftab Ahmed Gorar, J

Syed JUNAID AHMED and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No. 1447 of 2019, decided on 26th December, 2019\

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

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd and common intention---Bail, grant of---Delayed FIR---Accused persons sought bail after arrest in an FIR lodged under Ss. 302 & 34, P.P.C.---First Information Report had been lodged with the delay of 24 hours without explaining the delay---No evidence was available against the accused persons except their implication by the complainant---No incriminating evidence had been recovered from the possession of the accused persons---Presence of co-accused on the spot was doubtful as he was living in a separate house while the deceased was living in the same house as the main accused---Co-accused was admitted to bail while the main accused did not press his bail application in lieu of a direction to the Trial Court for expeditious disposal of the case.

Saifullah v. The State and others 2019 SCMR 1458; Ghulam Mujtaba Qadri v. The State and others 2012 SCMR 662 and Gul Din v. The State and another 2011 SCMR 1997 ref.

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

----S. 497---Bail---Deeper appreciation of evidence---Scope---Deeper appreciation of evidence and circumstances appearing in the case is not permitted at bail stage---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 and Saifullah v. The State and others 2019 SCMR 1458 ref.

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

----S. 497---Constitution of Pakistan, Art. 4---Bail---Further inquiry---Scope---Bail is to be granted as a matter of right and not by way of any concession or grace in case of further inquiry---Life and liberty of a citizen is very precious and guaranteed by Art. 4 of the Constitution.

Munir v. The State 2002 MLD 712 rel.

PLD 1989 SC 585 ref.

Muhammad Faisal Khan for Applicants.

Syed Miral Shah Bukhari, Addl.P.G.Sindh along with Abbas Haidar I/O PS Surjani Twon for the State.

Complainant in Person.

2023 Y L R 1746

[Sindh (Hyderabad Bench)]

Before Khadim Hussain Tunio, J

GHULAM HYDER SHAH---Petitioner

Versus

PROVINCE OF SINDH through Home Secretary Government of Sindh and 10 others---Respondents

Constitutional Petition No. S-2119 of 2017, decided on 5th April, 2019.\

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

----S. 491---Constitution of Pakistan, Art. 199---Habeas corpus petition---High Court, jurisdiction of---Recovery of detenue---According to S.491, Cr.P.C, habeas corpus petition could be filed in appellate criminal jurisdiction of the High Court if detenue was illegally or improperly detained within its territorial jurisdiction.

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

----S. 491---Habeas corpus petition---Rule nisi---Scope---Alleged abduction of petitioner's son---Place of detention, disclosure of---Purpose of provision of S. 491 of Criminal Procedure Code, 1898, was meat to get a rule nisi issued so as to get the person, alleged to be illegally detained, free, without going into any details of any complicated questions or inquiry---Summary nature of the proceedings always demanded pointing out of the specific place of detention and a general and vague claim of detention of a person without specific place of confinement would not be sufficient to issue a rule nisi---Petitioner having not specifically disclosed the place of detention of alleged detenue, S. 491, Cr.P.C. through the present petition, being a constitutional one could not help the petitioner---Petitioner had failed to prove his case and, in fact, had filed the present petition with mala fide intention by suppressing the real facts---Total effect of such acts and omissions could not be ignored lightly rather deserved an action so as to discourage such like attempts in future---Constitutional petition was dismissed with costs.

Muhammad Afzal v. Sessions Judge, Multan and 3 others PLD 2008 Lah. 479 ref.

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

----S. 491---Habeas corpus---"Illegal or improper detention"--- "Abduction" "kidnapping"---Distinction---Provision of S. 491, Cr.P.C., would not be available in a matter where the matter was not one of 'illegal/improper detention' but was that of 'abduction/kidnapping'---For allegation of abduction, the law enforcing agency, on initiation of investigation, could competently move to any place for recovery but following the procedure which included a right to get forceful ingress too---Since allegation/ claim, in the present case, was not that of improper detention but that of abduction without disclosing specific place of detention of such claimed abductee, provision of S. 491, Cr.P.C. was of no help to the petitioner to advance his case---Petitioner had failed to prove his case---Constitutional petition was dismissed with costs.

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

----S. 491---Habeas corpus petition---Remedy---Scope---Law provided a remedy for a genuine cause/grievance---If any time, a lawful remedy/course was, apparently, being exploited for personal reasons or to cause pressure upon a rival then such move needed to be examined---Petitioner had filed the petition with mala fide intention by suppressing the real facts---Constitutional petition was dismissed with costs.

(e) Constitution of Pakistan---

----Art. 199(1)(b)(i)---Criminal Procedure Code (V of 1898), S. 491---Constitutional petition--- Habeas corpus--- Factual controversy---Scope---Held, that petition had been filed under constitutional jurisdiction of the High Court which had its own limitations---Record revealed that the petitioner had got issued his family tree (from NADRA) after about four months of institution of present petition---Respondents (accused persons) had claimed that the petitioner had given a fake name to his son---Such controversy could not be resolved without proper inquiry/trial as well as examination of record and custodian thereof---Relief, which was dependent upon determination of controversial questions of facts, could not be granted under constitutional jurisdiction---Petitioner had not disclosed the specific place and names of persons who had allegedly wrongfully confined his son (alleged detenue)---Petitioner had given contradictory statements regarding his son's status (studies, health conditions etc.)---Petitioner had, prima facie, suppressed true facts and had made attempt to get favourable order and even using a non-existant person to be the 'abductee'---Constitutional petition was dismissed with costs, in circumstances.

Ijaz Hussain Suleri v. The Registrar and others 1999 SCMR 2381 ref.

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

----S. 491---Constitution of Pakistan, Art. 199---Constitutional petition---Habeas corpus---Concealment of facts---Effect---Petitioner had not disclosed in the pleadings the details of any agricultural lands under his possession especially having allotted land from Forest Department in the name of his wife---Petitioner had failed to prove his case and, in fact, had filed the present petition with mala fide intention by suppressing the real facts---Total effect of such acts and omission could not be ignored lightly rather deserved an action so as to discourage such like attempts in future---High Court directed the concerned Senior Superintendent of Police to initiate legal proceedings against the encroachers of the Forest lands---Constitutional petition was dismissed with costs.

(g) Constitution of Pakistan---

----Art. 199---Criminal Procedure Code (V of 1898), S. 491---Constitutional petition--- Habeas corpus--- Petitioner (a government employee) contended that he had joined a political party, the respondents allegedly used to compel him to join a rival political party and on his refusal, they abducted his son---Held that being a government servant the petitioner could not join any political party---Total effect of such acts and omissions on part of petitioner could not be ignored lightly rather deserved an action so as to discourage such like attempts in future---Constitutional petition was dismissed with costs.

Mumtaz Sachal Awan for Petitioner along with petitioner.

Habib-ur-Rehman Jamali, Asstt. A.G. along with Tanveer Tunio, SP Shaheed Benazirabad and DSP Yakoob Memon for Respondents.

Ahsan Gul Dahri for Respondent No.5.

2023 Y L R 1754

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

LAL MUHAMMAD and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 285 of 2020, decided on 18th April, 2022.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Safe custody---Scope---Prosecution case was that 176 kilograms of charas 250 packets was recovered from the truck of the accused persons---Entire quantity was sent to the Chemical Examiner---Narcotic samples were sent through Police Official who had been examined and deposed in all respects as to how and when he delivered the parcels received by him---Initial information was received by the complainant and the accused were arrested on the same day at about 12.15 p.m.---Sample for examination was sent to the Chemical Examiner within 72 hours of the alleged recovery---Police Official to explain the delay in sending the narcotics to the Chemical Examiner deposed that he was given copy of FIR and other relevant documents along with case property consisting of charas in six bags and truck involved in the incident---On the same date said witness went to the Office of Chemical Examiner for depositing the case property but until then the Office of Chemical Examiner had been closed as such he returned back---Office of the Chemical Examiner was closed due to the holidays and witness deposited the case property with his office---Seals on the parcels delivered were found intact by the Chemical Examiner too who noted that condition of the seals was satisfactory which further proved safe custody and transmission of the same---Report of Chemical Examiner available on record fully corroborated the evidence of all the prosecution witnesses---All necessary protocols were followed in the Chemical Examiner's Report which further supported the prosecution case---Circumstances established that the prosecution had undoubtedly proven the guilt of the accused persons beyond reasonable shadow of doubt---Appeal against conviction was dismissed accordingly.

Abdul Hameed v. The State 2016 SCMR 707; Khair-ul-Bashar v. The State 2019 SCMR 930; Mehboob-ur-Reliman v. The State 2010 MLD 481; Ghulam Qadir v. The State PLD 2006 SC 61; Haji Qasim Khan v. The State through DAG 2020 SCMR 1255 and Ibrarullah v. The State 2021 SCMR 128 ref.

Zahid and another v. The State 2020 SCMR 590 rel.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Prosecution case was that 176 kilograms of charas within 250 packets were recovered from the truck of the accused persons---Record showed that the prosecution witnesses had provided an uninterrupted chain of facts ranging from arrest and seizure to forensic analysis of the contraband---Witnesses were in comfortable unison on all the salient features regarding interception of the charas as well as all the steps taken thereafter---All the witnesses had unanimously deposed that the case property in Court was the same and were never cross-examined on that point by the defence at the time of trial---Three prime witnesses of the prosecution case, complainant, mashir of arrest and recovery had deposed that both the accused persons had pointed out the shelves in the truck and they were never cross-examined on that aspect of the case either---As such, the prudent presumption here would be that both the accused persons were well aware of the contents of the truck and the presence of narcotics---Contraband so recovered from the accused persons had been proved by examining the complainant, mashir of arrest and recovery and an independent witness---Circumstances established that the prosecution had undoubtedly proven the guilt of the accused persons beyond reasonable shadow of doubt---Appeal against conviction was dismissed accordingly.

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

----S. 9(c)---Possession of narcotic---Testimony of police officials, reliance upon---Scope---Police Officials are as good witnesses as any other private witness and their evidence is subject to same standard of proof and principles of scrutiny as applicable to any other category of witnesses---In absence of any animus, infirmity or flaw in their evidence, the testimony of Police Officials could be relied upon without demur.

Hussain Shah and others v. The State PLD 2020 SC 132 rel.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Defence plea---Scope---Prosecution case was that 176 kilograms of charas 250 packets were recovered from the truck of the accused persons---Accused had claimed to be arrested after the complainant allegedly took a bribe and let the real culprits go from whom 300 to 350 kilograms were recovered---No animus had been proved against the prosecution or the complainant---Nothing was brought on record to suggest that the accused persons were not arrested by the police from the truck as per the evidence---Mere assertion of accused persons that they had been involved falsely in the narcotics case, in absence of any tangible evidence, was of no consequence nor did it create any doubt about the recovery of narcotics---One of the accused persons even admitted his presence in the said truck and claimed that he was delivering wheat bags in his statement under S. 342, Cr.P.C.---Accused persons were bound to establish the defence plea of false implication through their arrest prior to the actual incident as agitated by them through adducing tangible evidence and such allegation in absence of sound evidence, could not be considered in view of Art. 121 of Qanun-e-Shahadat, 1984---Circumstances established that the prosecution had undoubtedly proven the guilt of the accused persons beyond reasonable shadow of doubt---Appeal against conviction was dismissed accordingly.

Anwar Shamim and another v. The State 2010 SCMR 1791 rel.

Nadeem Shahzad Hashmi for Appellant.

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

2023 Y L R 1768

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Amjad Ali Sahito, JJ

MUHAMMAD HASHIM SHAH and others---Appellants

Versus

The STATE and others---Respondents

Criminal Jail Appeal No. S-37, Criminal Acquittal Appeal No.D-10 and Criminal Revision Application No. D-66 of 2016, decided on 7th December, 2021.

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

----Ss. 302, 147, 148, 149, 504 & 114---Qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly, intentional insult with intent to provoke breach of peace, abettor present when offence was committed---Appreciation of evidence---Benefit of doubt---Delay of about three hours and thirty minutes in lodging the FIR---Scope---Accused were charged for committing murder of the brother of the complainant by inflicting hatchet blows---Complainant lodged FIR with the delay of 03 hours and 30 minutes---Complainant stated that he was not an eye-witness of the incident but was present in the High Court being a practicing lawyer---At about 11:30 am he received a mobile call from his brother that accused persons nominated in the FIR had committed the murder of his other brother in the agricultural land situated in village---On hearing such a story, he reached at RHC, where he had seen his brother lying dead in the mortuary and on the same day at about 02:15 pm he came to the police station and lodged the FIR against the accused persons nominated in the FIR---After the alleged incident the eye-witness of the incident had not shown the place of incident to complainant but only information was given to him---Whereas memo of the place of incident revealed that the same was prepared by Investigating Officer on the pointation of the complainant---After the incident, the dead body was shifted by the eye-witnesses to the RHC for its post-mortem and such information was not given to the SHO concerned---Medical Officer had deposed contrary to the evidence of said eye-witnesses and stated that he received the dead body of deceased at 12:30 noon times for post-mortem examination---Said witness further disclosed that the dead body was brought by Police Constable---Dead body was identified by the brother and cousin of the deceased not by the eye-witnesses---Investigating Officer deposed that at 02:30 pm complainant came to police station for registration of FIR against the accused persons---After registration of FIR, complainant visited the RHC---Dead body was shown by the complainant and prepared memo of injuries, so also prepared Danishtnama of the dead body---If the complainant had given the information to police at 02:30 pm then who had informed the police about the incident when the Medical Officer received the dead body 12:30 noon through Police Constable---Said facts showed that neither the eye-witness informed the police about the incident nor the Medical Officer had informed the police that one dead body was lying in his mortuary---High Court observed that all were waiting for the complainant to prepare the case against the accused persons---First Information Report in question had been lodged after about three hours and thirty minutes and thus, a possibility regarding deliberation before lodging of the FIR could not safely be ruled out of consideration---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 convictions and sentences recorded by the Trial Court, in circumstances.

Nazeer Ahmed v. The State 2018 SCMR 787 rel.

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

----Ss. 302, 147, 148, 149, 504 & 114---Qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly, intentional insult with intent to provoke breach of peace, abettor present when offence was committed---Appreciation of evidence---Benefit of doubt---Wider net, casting of---Scope---Accused were charged for committing murder of the brother of the complainant by inflicting hatchet blows---Eye-witnesses deposed that accused caused the sharp side of hatchet blows on the head of deceased---Other accused caused hatchet blows with sharp side on the head of deceased and the finger of his right hand---Another accused also caused hatchet's sharp side blows to deceased on his head and the first finger of the right hand---Co-accused also caused sharp side hatchet blow to deceased on his head and face---Other co-accused caused sharp side blows to deceased on his head and the palm of the right hand and after receiving the injuries deceased fell on earth and blood was oozing from his injuries---Circumstances suggested that, it was humanely impossible---Such fact did not appeal to a prudent mind that after receiving ten sharp cutting wounds on the head of the deceased, still deceased would remain in standing condition especially when he received all injuries on his head and face---At the time of the incident deceased was aged about 49 years old---Complainant and his witnesses were moving around at the place of the incident but they did not receive a single injury in the commission of the alleged offence nor did they try to save the brother---As stated by the eye-witnesses that all the five accused persons were inflicting hatchet injuries to the deceased on his head, in such a situation it was difficult to ascertain who caused which injury upon the deceased but the complainant had disclosed in detail the identification of a particular accused with a particular injury---Such was a typical culture of the society to throw the wide net to implicate as many family members as possible in the incident---Complainant had involved five sons and one father and had left no male member to pursue the case of accused persons---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 convictions and sentences recorded by the Trial Court.

Talal Ahmed Choudhry v. The State 2019 SCMR 542; Muhammad Sharif and others v. The State and others 2019 SCMR 1368; Amanat Ali v. The State 2017 SCMR 1976; Ghulam Muhammad and another v. The State and another 2017 SCMR 2048; Zafar Iqbal and others v. The State NLR 2014 Criminal 1; Akhmat Sher and others v. The State 2019 SCMR 1365; Muhammad Akram alias Akrai v. The State 2019 SCMR 610; Abdul Rashid alias Sheda Mota and another v. The State 2003 SCMR 799; Ghulam Sarwar v. The State 2019 YLR 2530; Roshan Ali v. The State 2019 MLD 1542; Aijaz Nawaz alias Baba v. The State 2019 PCr.LJ 1775; Mobashar Ahmad v. The State 2009 SCMR 1133; Muhammad Sadiq v. The State 2011 SCMR 888; Muhammad Anwar v. The State 2017 SCMR 630; Afzal and another v. The State 2007 SCMR 315; Muhammad Riaz v. Muhammad Zaman and another NLR 2005 Criminal 514; Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others PLD 1976 SC 452; Sh. Muhammad Abid v. The State 2011 SCMR 1148; Lakhan alias Chalho and others v. The State and others 2017 PCr.LJ Note 258; Munir Ahmad v. The State 2020 SCMR 968; Muhammad Fazil v. The State 1995 SCMR 1330; Muhammad Younas and another v. The State and others 1990 SCMR 1272; Kouro and 5 others v. The State 2013 YLR 1215; Nawab v. The State 2006 SCMR 456; Danyal alias Dani v. The State 2017 MLD 1197; Muhammad Akbar alias Bhola and others v. The State and others 2019 SCMR 2036; Muhammad Mansha v. The State 2016 SCMR 958; Khalid Iqbal v. Mirza Khan 2015 Cr.LJ 12; Muhammad Sher alias Malang v. The State PLD 2001 SC 90 and Nawaz Ali and another v. The State 2001 SCMR 726 ref.

Muhammad Zaman v. The State 2014 SCMR 749 rel.

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

----Ss. 302, 147, 148, 149, 504 & 114---Qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly, intentional insult with intent to provoke breach of peace, abettor present when offence was committed---Appreciation of evidence---Benefit of doubt---Presence of eye-witnesses at the spot at the relevant time was doubtful---Scope---Accused were charged for committing murder of the brother of the complainant by inflicting hatchet blows---Complainant and the eye-witnesses of the deceased were real brothers and both the eye-witnesses were chance witnesses who had failed to bring anything on the record to establish the stated reasons for their availability near the deceased at the relevant time---Reason shown by the eye-witness that he was asked by the deceased to bring a water but he could not submit any evidence to believe that he had brought the water---Eye-witnesses admitted that there were houses at the land of the deceased so also 20/25 houses were situated in village, but not a single independent person had been produced by the prosecution to receive independent corroboration 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 convictions and sentences recorded by the Trial Court.

Mst. Shazia Parveen v. The State 2014 SCMR 1197 and Zafar v. The State 2018 SCMR 326 rel.

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

----Ss. 302, 147, 148, 149, 504 & 114---Qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly, intentional insult with intent to provoke breach of peace, abettor present when offence was committed--- Appreciation of evidence--- Benefit of doubt---Improvements in the medical evidence---Scope---Accused were charged for committing murder of the brother of the complainant by inflicting hatchet blows---In the present case, the Medical Officer had made improvements and added six more injuries in the medical certificate---All the injuries received by the injured were external viz on the head and one injury on his face, but the Medical Officer first had written four injuries and then increased up to ten injuries---Normally the human head was admeasuring 8x8 inches---Injuries received by the deceased were not measured by Medical Officer nor had shown the distance between the injuries---Even the Medical Officer had not disclosed that after removing the hair from the head he had counted the injuries but High Court observed that on the direction of the complainant he had increased the number of injuries up to 10 injuries otherwise neither he had opened the abdomen nor thorax to believe that there were internal injuries and subsequently found the further injuries---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 convictions and sentences recorded by the Trial Court.

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

----Ss. 302, 147, 148, 149, 504 & 114---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly, intentional insult with intent to provoke breach of peace, abettor present when offence was committed---Appreciation of evidence---Benefit of doubt--- Confessional statement of accused--- Infirmities--- Accused were charged for committing murder of the brother of the complainant by inflicting hatchet blows---Confessional statement of accused in which the Magistrate had not given the warning to the accused that in case he confessed or not, his custody would not be handed over to the Investigating officer/same police---Judicial Magistrate, in his evidence, tried to fill the lacuna by stating that he had informed him that if he would make or not make the confession, he would not be handed over to the same police---Confessional statement to be relied upon should not only be true, voluntary and believable but should be without fear, favour or any inducement---Documentary evidence shall prevail over the oral statement made at subsequent stage, contradicting the contents of the documents---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 convictions and sentences recorded by the Trial Court, in circumstances.

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

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

----Ss. 302, 147, 148, 149, 504 & 114---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly, intentional insult with intent to provoke breach of peace, abettor present when offence was committed---Appreciation of evidence---Benefit of doubt---Delay of six days in recording confessional statement of accused---Scope---Accused were charged for committing murder of the brother of the complainant by inflicting hatchet blows---Alleged confessional statement of the accused which was recorded after six days of his arrest could not be relied upon---Especially when five sons of the father had been booked in the murder case---From the perusal of the confessional statement, it appeared that if there was any dispute between the parties since 1984 then they did not kill the deceased and in the presence of both eye-witnesses killed him by leaving both the witness to depose against them---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 convictions and sentences recorded by the Trial Court.

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

----S. 342---Statement of accused---Scope---If any incriminating piece of evidence was not put to accused in his statement under S.342, Cr.P.C., for his explanation, the same could not be used against him for his conviction.

Muhammad Shah v. The State 2010 SCMR 1009 and Muhammad Fayaz v. The State 2012 SCMR 522 rel.

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

----Ss. 302, 147, 148, 149, 504 & 114---Qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly, intentional insult with intent to provoke breach of peace, abettor present when offence was committed---Appreciation of evidence---Benefit of doubt---Motive was not proved---Scope---Accused were charged for committing murder of the brother of the complainant by inflicting hatchet blows---Motive as set-up by the complainant in his FIR and other eye-witnesses that there was a dispute over the landed property but eye-witness of the incident in his cross-examination had denied the suggestion that the deceased filed different cases against the accused persons---Prosecution had failed to prove the motive against the accused persons hence, the real cause of occurrence remained shrouded in mystery---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 convictions and sentences recorded by the Trial Court.

Mst. Nazia Anwar v. The State 2018 SCMR 911 rel.

(i) Criminal trial---

----Benefit of doubt--- Principle---Prosecution was bound to prove its case beyond a shadow of doubt---If a reasonable doubt noticed in the prosecution case, the benefit of same must be extended to the accused not as a grace or concession, but as a matter of right.

Mohammad Mansha v. The State 2018 SCMR 772 rel.

Muhammad Hashim Laghari for Appellants (in Criminal Jail Appeal No. S-37 of 2016).

Shahid Ahmed Shaikh, Additional Prosecutor General, Sindh for Respondent (in Criminal Jail Appeal No. S-37 of 2016).

Syed Tarique Ahmed Shah and Saad Salman Ghani for the Complainant (in Criminal Jail Appeal No. S-37 of 2016).

Syed Tarique Ahmed Shah and Saad Salman Ghani for Appellants (in Criminal Acquittal Appeal No. D-10 of 2016).

Muhammad Hashim Laghari for Respondent No.l (in Criminal Acquittal Appeal No. D-10 of 2016).

Shahid Ahmed Shaikh, Additional Prosecutor General, Sindh for Respondent No. 2 (in Criminal Acquittal Appeal No. D-10 of 2016).

Syed Tarique Ahmed Shah and Saad Salman Ghani for Appellants (in Criminal Revision Application No. D-66 of 2016).

Nemo for Respondents Nos. 1 to 5 (in Criminal Revision Application No. D-66 of 2016).

Shahid Ahmed Shaikh, Additional Prosecutor General, Sindh for Respondent No. 6 (in Criminal Revision Application No. D-66 of 2016).

2023 Y L R 1796

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

IMRAN AHSAN alias SUNNY and others---Appellants

Versus

The STATE and others---Respondents

Special Criminal Anti-Terrorism Jail Appeals Nos. 148 of 2015, 341 of 2018 and Special Criminal Anti-Terrorism Acquittal Appeal No. 152 of 2015, decided on 4th May, 2020\

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

----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abducting for extorting property, valuable securities, common intention, act of terrorism---Appreciation of evidence---Delay of more than eight days in lodging the FIR---Effect---Accused was charged for kidnapping the son of complainant for ransom, however, he was released after the payment of Rs. ten lac---Record showed that a day after his son went missing the complainant reported the matter to the police which entry was exhibited at trial---Complainant after a day also reported the matter to the CPLC---Said fact was also not unusual in kidnapping for ransom cases for there being a delay in filing FIR as the parents were often frantically searching for their abducted child and as such lodging of the formal FIR was of lesser importance to them---Even otherwise the delay in the FIR had been explained by the complainant as he was threatened by the kidnappers not to lodge the FIR which by his own admission made him scared and delayed him from so doing---No enmity had been suggested against the police or the other witnesses including the complainant, abductee and person who paid the ransom and as such none of them had any reason to implicate the accused in a false case---If they wanted to falsely implicate the accused they could have easily nominated them as accused in the FIR but the complainant did not do so---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against two accused---Appeals against conviction were dismissed accordingly.

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

----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abducting for extorting property, valuable securities, common intention, act of terrorism---Appreciation of evidence---Tender of pardon---Evidence of accomplice---Scope---Accused was charged for kidnapping the son of complainant for ransom, however, he was released after the payment of Rs. ten lac---Star prosecution witness was a female accused, who turned approver in the case against her co-accused---Said witness was granted a conditional pardon by the Trial Court and despite her pardon being challenged by the State on account of her not giving completely truthful evidence at trial after a full dressed trial the trial court found that approver had told the complete truth at trial and as such acquitted her of the charge and upheld her grant of pardon---Having dismissed the complainant's appeal against acquittal of approver for not giving truthful evidence after carefully considering the evidence on record including her evidence given at the trial and her statement under S.164, Cr.P.C, the Court had believed that she had given truthful evidence at trial which was not dented during cross-examination---Since her evidence fully implicated accused persons in the offenses for which they had been charged, thus supported the prosecution case---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against two accused---Appeals against conviction were dismissed accordingly.

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

----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abducting for extorting property, valuable securities, common intention, act of terrorism---Appreciation of evidence---Approver, evidence of---Corroboration---Accused was charged for kidnapping the son of complainant for ransom, however, he was released after the payment of Rs. ten lac---Evidence of approver was corroborated in all material respects given by the complainant in respect of accused being with approver when she left with his son in broad day light who he identified, the ransom negotiations, the amount of ransom which was settled and the payment of the ransom and the place where the abductee was released after the payment of ransom---Evidence of approver was corroborated in all material respects by abductee in respect of accused being with approver when he left with them in broad day light to show them properties---Abductee had identified two accused who were present when he recorded his statement under S.164, Cr.P.C as his kidnappers and also recognized them again in court---Identification parade was not necessary as the abductee was with them for 8 to 9 days and would have got a good look at them and as such would have been able to easily identify them---Abductee also corroborated approver as to where he was held captive and demanded the ransom and the place where he was released after the payment of ransom---Abductee had no ill will or enmity with any of the accused and had no reason to falsely implicate the accused and as such his evidence which was not dented during cross-examination was believable---Evidence of approver was corroborated in all material respects by the witness, who was aware of the ransom negotiations, the amount of ransom which was settled and actually paid the ransom amount to the accused at the place mentioned by approver---Said witness had no ill will or enmity with any of the accused and had no reason to falsely implicate the accused and as such his evidence in respect of that aspect of the case was believable---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against two accused---Appeals against conviction were dismissed accordingly.

Muhammad Yasin v. The State 1996 SCMR 1588; Abdul Ghafoor v. The State PLD 1984 Lah. 441; Ghulam Rasool alias Gudda v. The State 2020 YLR 212; Javed and 2 others v. The State and another 2009 MLD 1049; Muhammad Afzal alias Abdullah and others v. The State and others 2009 SCMR 436; Sabir Ali alias Fauji v. The State 2011 SCMR 563; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Muhammad Siddique and others v. The State 2020 SCMR 342; Zakir Khan and others v. The State 1995 SCMR 1793; Junaid Rehman and others v. The State and others PLD 2011 SC 1135; Aurangzeb v. The State 2010 PCr.LJ 1281; Khawaja Hasanullah v. The State 1999 MLD 514; Rafaqat Ali and others v. The State 2016 SCMR 1766; Muhammad Akram Rahi and others v. The State and others 2011 SCMR 877; Muhammad Riaz and others v. Bilqaiz Khan and others 2012 SCMR 721; Sh. Muhammad Amjad v. The State PLD 2003 SC 704; Niaz Ali Rajper v. The State 2020 PCr.LJ 96; Sajan and another v. The State 2015 PCr.LJ 953; Muhammad Rasool v. The State 2015 PCr.LJ 391; Ghulam Hussain Soomro v. The State PLD 2007 SC 71; Ansar Mehmood v. Abdul Khaliq and another 2011 SCMR 713; Muhammad Siddique and others v. The State 2020 SCMR 342; Ahmed Hussain alias Ami and others v. The State PLD 2008 SC 110; Muhammad Banaras and another v. The State 1968 PCr.LJ 906; Muhammad Arif v. The State 1995 MLD 1680 and Abdul Adeel and others v. The State 2009 SCMR 511 ref.

Zakir Khan v. State 1995 SCMR 1793 rel.

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

----S. 417---Appeal against acquittal---Interference--- Scope--- Judgment of acquittal should not be interjected until findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous---Scope of interference in appeal against acquittal is narrow and limited because in an acquittal the presumption of the innocence is significantly added to the cardinal rule of criminal jurisprudence as the accused would be presumed to be innocent until proved guilty.

The State v. Abdul Khaliq and others PLD 2011 SC 554 rel.

Muhammad Iqbal Chaudhry for Appellant (in Special Criminal Anti-Terrorism Jail Appeal No. 148 of 2015).

Muhammad Iqbal Awan, Deputy Prosecutor General for the State (in Special Criminal Anti-Terrorism Jail Appeal No. 148 of 2015).

Abdul Jabbar for Appellant (in Special Criminal Anti-Terrorism Jail Appeal No. 341 of 2018).

Muhammad Iqbal Awan, Deputy Prosecutor General for the State (in Special Criminal Anti-Terrorism Jail Appeal No. 341 of 2018).

Mushtaq Ahmed for Appellant (in Special Criminal Anti-Terrorism Acquittal Appeal No. 152 of 2015).

Moula Bux Bhutto for Respondent No.1 (in Special Criminal Anti-Terrorism Acquittal Appeal No. 152 of 2015).

Muhammad Iqbal Awan, Deputy Prosecutor General for the State No.2 (in Special Criminal Anti-Terrorism Acquittal Appeal No. 152 of 2015).

2023 Y L R 1813

[Sindh (Larkana Bench)]

Before Mohammad Karim Khan Agha, J

MUKHTIAR CHANDIO---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-109 of 2019, decided on 15th January, 2021.

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

----Ss. 302, 114, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Prompt lodging of FIR---Effect---Accused was charged that he and co-accused committed murder of the father of complainant by firing on old matrimonial issue---Record showed that FIR in respect of the incident was filed within hours of the incident---Such prompt filing of the FIR ruled out the possibility of the complainant concocting a false case against the accused with the police or any other third party---Even otherwise the complainant had no enmity with the accused and had no reason to falsely implicate him in a case---Any slight delay which might have been in lodging the FIR had been accounted for by the prosecution taking the body to a hospital and then yet another hospital where the deceased expired---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 302, 114, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Ocular account supported by medical evidence---Accused was charged that he and co-accused committed murder of the father of complainant by firing on old matrimonial issue---Record showed that it was a day light incident and complainant knew the accused, as prior to that incident a matrimonial dispute had arisen between them---Accused was named in the FIR with the specific role of shooting complainant's father in the belly with a pistol which was registered a few hours after the incident so there was no time for the complainant to cook up any false story or not to correctly identify the accused, thus, identification parade was not required---Eye-witness was natural witness---Said witness lodged FIR with promptitude and named the other eye-witnesses in the FIR ---Said witness mentioned the accused in FIR with specific role that witness had no enmity with the accused and had no reason to falsely implicate him---Evidence of said witness was not dented despite lengthy cross-examination and as such his evidence was believable especially in terms of his correct identification of the accused and his role in the crime---Evidence of said witness was found to be reliable, trust worthy and confidence inspiring---Remaining two eye-witnesses corroborated the complainant in all material aspects---Medical evidence given by Medical Officer, who carried out the post-mortem of the deceased, fully supported the oral evidence---All the witnesses were consistent in their evidence---Even if there were some contradictions in their evidence, which were considered as minor in nature and not material and certainly not of such materiality so as to affect the prosecution case and the conviction of the accused---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

Ghazanfar Ali v. The State 2012 SCMR 215; Muhammad Ehsan v. The State 2006 SCMR 1857 and Zakir Khan v. State 1995 SCMR 1793 rel.

(c) Criminal trial---

----Witness--- Related witnesses---Reliance---Scope---Evidence of related witness could not be discarded unless there was some ill will or enmity between the eye-witnesses and the accused.

(d) Criminal trial---

----Evidence--- Oral and medical evidence---Scope---Oral evidence will take preference over medical evidence.

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

----Ss. 302, 114, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of weapon and crime empties---Scope---Accused was charged that he co-accused committed murder of the father of complainant by firing on old matrimonial issue---Record showed that on arrest a 30 bore pistol was recovered from the accused which matched with two of the four empties recovered at the scene and a 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.

Razi Khan R. Chandio for Appellant.

Ali Anwar Kandhro, Addl: P.G. for the State.

Complainant in person.

2023 Y L R 1862

[Sindh]

Before Muhammad Saleem Jessar, J

SABIR---Appellant

Versus

The STATE---Respondent

Criminal Bail Application No. 681 of 2021, decided on 14th September, 2021.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 147, 148, 149, 452, 337-H, 337-F(i) & 506---Rioting, rioting armed with deadly weapon, unlawful assembly, house-trespass after preparation for hurt, assault or wrongful restraint, hurt by rash or negligent act, ghayr-jaifah, damiyah, criminal intimidation---Pre-arrest bail, grant of---Failure to produce medical evidence---Further inquiry---Scope---Role attributed to the accused was that he allegedly caused kicks and fists blows to the complainant and no weapon was used in the quarrel/scuffle---Moreover, the injuries allegedly shown to have been sustained by the complainant were on non-vital parts of his body for which no medical evidence was brought on record---Punishment provided by the law for the sections applied under the FIR, did not exceed limits of prohibitory clause of S. 497, Cr.P.C.---Furthermore, case had been challaned which was now pending for trial before the Court of Judicial Magistrate, where charge against him had also been framed---Case against accused required further inquiry within the meaning of subsection (2) of S. 497, Cr.P.C.---Bail application was allowed, in circumstances.

Dur Muhammad v. The State 1994 PCr.LJ 1769; Muhammad Tanveer v. The State and another PLD 2017 SC 733 and Iftikhar Ahmed v. The State Criminal Petition No.529 of 2021 ref.

Sikandar Zulqarnain Unnar along with Applicant (on bail) for Appellant.

Ms. Rahat Ehsan, Addl. Prosecutor General, Sindh for the

State.

2023 Y L R 1887

[Sindh]

Before Muhammad Junaid Ghaffar and Agha Faisal, JJ

Syed ALI NAWAZ SHAH and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Accountability Appeals Nos.9 and 30 of 2015, decided on 13th September, 2022.

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

----S. 9---Qanun-e-Shahadat (10 of 1984), Art. 47---Criminal Procedure Code (V of 1898), S. 353---Corruption and corrupt practices---Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts stated therein---Scope---Land of appellants along with others was compulsorily acquired for the construction of a project under the Land Acquisition Act, 1984---Prosecution case was that although the appellants and other accused were entitled to compensation under the Land Acquisition Act, 1894, to some extent but they managed to obtain excess payments based on forged and fabricated Form-B---As a result, they were not entitled to such compensation---National Accountability Bureau (NAB) deemed this act as an offense of corruption and corrupt practices under S. 9(a)(iv) & (ix) of the National Accountability Ordinance, 1999---Accountability Court convicted the appellants---Validity---Trial Court while proceeding afresh against the appellants after remand of the matter by the Supreme Court, though re-examined prosecution's available witnesses, however, while doing so, neither the prosecution, nor the Trial Court brought on record the documents which were earlier exhibited by these witnesses in the earlier trial against the main/remaining accused---None of the alleged forged and fabricated Form-B or for that matter Form-VII, were brought in evidence---Not even in the earlier evidence---Since they were never produced, as such, were never referred to any hand writing expert---In such circumstances, when the very basic document which was alleged to be forged was never brought on record before the Trial Court, it could not have come to conclusion as to which of the forms were genuine and which were not---This was the entire basis of the allegation against the appellants; and once it was not produced before the trial Court, how could a person be convicted for such an offence was beyond comprehension---Procedure adopted by the Trial Court was not only irregular; but apparently was an illegality which could not be cured in any manner---Prosecution had failed to being any convincing material before the trial Court so as to fully implicate the appellants---Appeals were allowed, in circumstances.

Bashir Ahmed v. The State PLD 2004 Kar. 577; Ghulam Hussain and others v. The State 1996 PCr.LJ 514; Muhammad Younis's case PLD 1953 Lah. 321 and Nur Elahi v. The State and others PLD 1966 SC 708 rel.

Pakistan Engineering Consultants through Managing Partner v. Pakistan International Airlines Corporation through Managing Director and another PLD 2006 Kar. 511; Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160; Syed Ali Nawaz Shah and others v. The State and others 2003 SCMR 719; Syed Ali Nawaz Shah and 2 others v. The State and others PLD 2003 SC 837; Muhammad Akib Pali v. Madad Ali and 2 others PLD 1972 Kar. 433; Chaudhry Muhammad Aslam v. The State 2010 PCr.LJ 1778; Ali Akbar v. The State PLD 1997 Kar. 146; Askari Hassan v. The State PLJ 2010 Cr.C. (Karachi) 381; Zahoor v. The State 1991 MLD 1951; Zafarullah and others v. The State 1972 PCr.LJ 734; Mst. Nasim Mai v. The State 2004 PCr.LJ 1084; Alam Sher's case 1977 PCr.LJ 1078; Abdul Waheed's case 1968 PCr.LJ 776; Qalandar Khan's case PLD 1971 Pesh. 119 and Khwaja Muhammad Anwar's case 1983 PCr.LJ 2070 ref.

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

----S. 353---Evidence to be taken in presence of accused---Scope---In terms of S. 353, CrPC, all evidence is to be taken in presence of accused; except as otherwise expressly provided, and when his personal attendance is dispensed with, in presence of his pleader.

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

----Art. 47---Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts stated therein---Scope---Article 47 of Qanun-e-Shahadat, 1984 provides relevancy of certain evidence for proving the same in subsequent proceedings, and states that the evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving the same, in a subsequent proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable---It further provides that such proceedings should be between the same parties or their representatives in interest and the adverse party in the first proceeding had the right and opportunity to cross-examine and the questions in issue were substantially the same in the first as in the second proceeding.

Mehmood A. Qureshi and Shoukat Hayat for Appellants (in Criminal Accountability Appeal No. 9 of 2015).

R.D. Kalhoro, Special Prosecutor NAB for the State (in Criminal Accountability Appeal No. 9 of 2015).

R.D. Kalhoro, Special Prosecutor NAB for Appellant (in Criminal Accountability Appeal No. 30 of 2015).

Mehmood A. Qureshi and Shoukat Hayat for Respondents (in Criminal Accountability Appeal No. 30 of 2015).

2023 Y L R 1914

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

MUHAMMAD AYOUB and another---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Jail Appeal No. 68 of 2020, decided on 7th April, 2022.

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

----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Kidnapping or abduction for extorting property, valuable security, etc., common intention, act of terrorism---Appreciation of evidence---Accused were charged for abducting the brother of the complainant for ransom---Accused persons played no role in actually abducting the abductees from their car which was later found abandoned on the Super Highway and produced at trial but their role was to guard the abductees and assist in the demanding of the ransom for their safe return after threatening them when they were dropped off to them by the other members of the gang who actually carried out the abduction and were now absconders---Abductees were all travelling for dinner when they were stopped by another vehicle where upon three armed men alighted whose faces were covered and who robbed them of their wallets and phones before bundling them blind folded into another car and took them away---All three abductees corroborated each other in all material respects in respect of their abduction and their abduction was not particularly challenged at trial and as such the kidnapping of the abductees had been proven beyond a reasonable doubt---Circumstances established that the prosecution had proved its case against the accused persons---Appeal was dismissed accordingly.

Mian Sohail Ahmed v. The State 2019 SCMR 956; Gulfam v. The State 2017 SCMR 1189; Ziaullah alias Jajj v. The State 2008 SCMR 1210; Kamal Din alias Kamala's case 2018 SCMR 577; Khadim Hussain v. The State 1985 SCMR 721; Muhammad Zaman v. The State 2007 SCMR 813; Khawaja Hasanullah v. The State 1999 MLD 514; Rafaqat Ali v. The State 2016 SCMR 1766; Dr. Javaid Akhtar v. The State PLD 2007 SC 249 and Muneer Ahmad v. The State 1998 SCMR 752 ref.

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

----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Kidnapping or abduction for extorting property, valuable security, etc., common intention, act of terrorism---Appreciation of evidence---Abduction---Demand of ransom amount---Scope---Accused were charged for abducting the brother of the complainant for ransom---In order to prove a case of kidnapping for ransom no ransom amount needed to be paid or recovered but only proof that a demand for ransom was made---Abductee/witness stated in his evidence that after one or two days they obtained from them cell No's of their family members and made conversation with them and after 7 to 8 days the accused recorded their voices with dialogues whereby they were compelling them to convey their demand of ransom amount to our family members and that they understood that by recording their voices for ransom amount such voice recordings were sent to another place to another person belonging to the accused to convey their voices of the ransom demand to their family members---Ransom amount was initially for one crore and 40 tola gold for the release of each person but was later reduced to 15/20 lacs for each person---Other abductee corroborated the ransom demands by the accused and that they would face dire consequences if the ransom was not paid---Another abductee also corroborated such ransom demands and threats---Such fact showed that the demand appeared to have been made from another location was corroborated by the CDR which showed that many calls which were made during the period whilst the abductees were in captivity were made to the complainant and that those calls emanated from other Province where one of the absconding kidnappers was from---Such ransom demands were also corroborated by two other witnesses who were both related to the abductees and received the said ransom demands and reported the matter to the police---Ransom demands were made for the release of the abductees which were passed on through the persons holding the abductees in captivity---Circumstances established that the prosecution had proved its case against the accused persons--- Appeal was dismissed accordingly.

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

----Ss. 365-A & 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., common intention, act of terrorism---Appreciation of evidence---Test identification parade---Scope---Accused were charged for abducting the brother of the complainant for ransom---Identification parade was carried out in respect of accused and despite being a joint identification parade accused was picked out by one of the abductees with a specific role---Circumstances established that the prosecution had proved its case against the accused persons---Appeal was dismissed accordingly.

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

----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Kidnapping or abduction for extorting property, valuable security, etc., common intention, act of terrorism---Appreciation of evidence--- Discrepancies and contradictions---Scope--- Accused were charged for abducting the brother of the complainant for ransom---Some discrepancies/contradictions existed in the evidence of the abductees but were not material enough to effect the prosecution case especially as the abductees were to endure a very traumatic experience over a long period of time where discrepancies were bound to slip---Circumstances established that the prosecution had proved its case against the accused persons---Appeal was dismissed accordingly.

Zakir Khan v. State 1995 SCMR 1793 rel.

Iftikhar Ahmed Shah for Appellants.

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

2023 Y L R 1926

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Amjad Ali Sahito, JJ

FALAK SHER and another---Appellants

Versus

The STATE---Respondents

Criminal Appeals Nos. D-71 and D-79 of 2020, decided on 6th September, 2022.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Prosecution case was that 18 kilograms charas was recovered from the vehicle of the accused persons---Investigating Officer had described the incident in detail, constituting the raiding party after receipt of spy information, nabbing accused persons, recovery of two bags containing the charas from their car, preparation of memo and registration of the case against them---Investigating Officer also produced relevant entries recording movement of the raiding party on the fateful day, FIR, memo of place of incident, recovery and arrest of the accused persons in addition to the entry documenting deposit of property in Malkhana---Recovery witness had fully supported the Investigating Officer over all such features of the case---Police Constable, entrusted with samples for delivery in Chemical Laboratory, had expressed the facts in his deposition and had produced relevant entry recording such movements besides identifying the receipt of delivery of samples obtained by him from laboratory---All the said three witnesses had been subjected to a considerable cross-examination but defense had not succeeded in creating any dent in their evidence---Said witnesses had stood the ground on all salient features of the case without wavering---Evidence of said witnesses was confidence inspiring and in absence any record of animosity with the accused persons, it could not be discarded---Circumstances established that the prosecution had succeeded to prove its case against the accused persons beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

2020 SCMR 196; 2019 SCMR 326; 2019 SCMR 1649; PLD 1997 SC 408; 2019 YLR 51; 2018 MLD 1025; 2018 MLD 1311; 2017 YLR Sindh 1292 and 2015 PCr.LJ 1402 ref.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Dispatch of sample for test or analysis---Safe custody---Prosecution case was that 18 kilograms charas was recovered from the vehicle of the accused persons---Record showed that 18 samples, each weighing 10 grams, sent to Chemical Laboratory for analysis were the representative samples obtained from each packet, numbering 18---Each sample represented each packet weighing 1 Kg and such calculation means that the accused persons were responsible for entire property recovered from them---Defense arguments that accused persons would be held responsible only for 180 grams of charas were not sustainable---Accused persons nowhere had contested the originality or genesis of the samples to be part of the whole property---Further, in order to boost the case, and establishing safe custody of the property, an entry recording deposit of recovered property in Malkhana had been produced---Entrustment of samples to Police Constable/witness and its delivery by him in laboratory for analysis was also established through his evidence---Chemical report evinced that property was received in the office next day in a sealed condition, found satisfactory, through a Police Constable---Detail of protocol applied to test the samples had also been incorporated in the report---Safe custody of the property and safe transmission of the samples thus were verified without any trace of reasonable doubt---No inconsistency, minor or major, in either deposit of the property in Malkhana or receipt of the samples in laboratory had been pointed out by defense undermining the intrinsic worth of the prosecution case against accused persons---Circumstances established that the prosecution had succeeded to prove case against the accused persons beyond a reasonable doubt---Appeal against conviction was dismissed accordingly.

Masood Rasool Babar Memon and Pervaiz Tariq Tagar for Appellants.

Shahnawaz Brohi, Special Prosecutor, ANF for the State.

2023 Y L R 1938

[Sindh]

Before Muhammad Junaid Ghaffar and Agha Faisal, JJ

TELENOR MICROFINANCE BANK LIMITED through Authorized Representative---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Defence and 2 others---Respondents

Constitutional Petition No. D-77 of 2021, decided on 18th February, 2021.

(a) Constitution of Pakistan---

----Art. 199---Cantonments Act (II of 1924), S. 65---Constitutional petition---Incidence of taxation---Scope---Petitioner-bank, in its' capacity as a tenant, assailed a demand notice issued by the Cantonment Board for recovery of property and conservancy tax, issued in respect of the property under occupation---Contention of petitioner was that it had paid rental, for the current tenure of its tenancy, in advance; hence, it would be difficult to recover the dues, if paid on account of the landlord---Validity---Section 65 of the Cantonments Act, 1924, provided that the relevant tax could be recovered from an occupier; however, the occupier was entitled to reimbursement, subject to the absence of a contract to the contrary---In the instant case, the petitioner had demonstrated, from the rent agreement on the file, that there was no contract to the contrary---Petitioner had failed to set forth a case for the exercise of extraordinary writ jurisdiction by the High Court---Constitutional petition was dismissed.

Asad Sajjad v. Cantonment Clifton Board and another (C.P. D-12 of 2010 and C.P. D-2684 of 2009 and Muhammad Asif Khan v. Cantonment Board Faisal and another (C.P. D-2178 of 2010) ref.

(b) Constitution of Pakistan---

----Art. 201---Decision of High Court binding on subordinate Courts---Scope---Earlier judgments of Division Bench of a High Court, on the same point, are binding upon a subsequent equal Bench.

Multiline Associates v. Ardeshir Cowasjee and others 1995 SCMR 362 and Abdul Rauf Nizamani v. ECP and others 2020 CLC 2063 ref.

Faiz Ahmed for Petitioner

Akhtar Hussain Shaikh for Respondents.

Muhammad Ahmer, Assistant Attorney General for Respondents.

2023 Y L R 1947

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

MUHAMMAD DANISH and another---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 237, 238, 242 and 243 of 2019, decided on 9th February, 2022.

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

----Ss. 302, 120 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, concealing design to commit offence punishable with imprisonment, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Delay of two days in lodging the FIR---Scope---Accused were charged for committing murder of the brother of complainant and his friend---Record showed that the FIR was lodged after a delay of two days---Reason for the delay in lodging the FIR was that the complainant had to go to the hospital to attend to the deceased and then arranged their burial and thereafter lodged the FIR---Delay in lodging the FIR had been explained---Importantly the FIR was against unknown persons and as such there was no attempt to falsely implicate the accused or any other body or else they might have been specifically named in the FIR---Complainant had no enmity with the accused and had no reason to falsely implicate them and as such it was found that the delay in lodging the FIR was not fatal to the prosecution case as the delay had been explained, the accused were not nominated in the FIR and as such the delay in filing the FIR has not benefited the prosecution or prejudiced the accused---Circumstances established that the prosecution had proved the case against the accused persons beyond a reasonable doubt---Appeal was dismissed accordingly.

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

----Ss. 302, 120 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, concealing design to commit offence punishable with imprisonment, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Ocular account of the incident---Scope---Accused were charged for committing murder of the brother of complainant and his friend---Ocular account of the incident had been furnished by sole eye-witness---Said witness lived close to the deceased and was not a chance witness---Said witness had seen the occurrence in broad day light from about 20 feet---Faces of accused were uncovered and thus he would have been able to get a good clear unobstructed view of them---Eye-witness recorded his S. 161, Cr.P.C. statement within 48 hours of the incident and apparently he gave the hulia of the accused persons although that was disputed---Said witness stated that he could clearly recognize the accused persons if he had seen them again---Said witness had no enmity with the accused persons and thus had no reason to implicate them in a false case---Prosecution's case was that murder was a target killing based on political affiliation however, the eye-witness was an independent witness without any party affiliation---Record showed that it was found that the eye-witness gave his evidence in a straight forward and natural manner and was not dented during a lengthy cross-examination and as such his evidence was believable---Circumstances established that the prosecution had proved the case against the accused persons beyond a reasonable doubt---Appeal was dismissed accordingly.

Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Zaman v. The State 2007 SCMR 813; Abdul Haq v. The State 2015 SCMR 1326; Mst. Naseem Akhtar v. The State 1999 SCMR 1744; Niaz-ud-Din v. The State 2011 SCMR 725; Muhammad Ilyas v. The State 2011 SCMR 460; Zulfiqar Ahmad v. The State 2011 SCMR 492; Muhammad Ehsan v. The State 2006 SCMR 1857; Muhammad Waris v. The State 2008 SCMR 784; Qaiser Khan v. The State 2009 SCMR 471; Muhammad Amin v The State PLD 2006 SC 219 and Muhammad Rashid v. The State 2022 YLR 119 ref.

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

----Ss. 302, 120 & 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, concealing design to commit offence punishable with imprisonment, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Test identification parade---Infirmities---Accused were charged for committing murder of the brother of complainant and his friend---Sole eye-witness appeared before an identification parade at a time which was less than one month after the incident and picked out both the accused with a specific role six days after their arrest---Although it seemed that the identification parade was not carried out strictly in accordance with the law in that it was a joint identification parade and thus there was a caution as to its legal validity---Slight six days in holding the identification parade was not of much consequence---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---Evidence of the eye-witness was reliable, trustworthy and confidence inspiring, which was believable especially with regard to the correct identification of the accused as the persons who shot and murdered the deceased and could convict on that evidence provided that there was some corroborative/ supportive evidence--- Circumstances established that the prosecution had proved the case against the accused persons 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.

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

----Ss. 302, 120 & 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. 164---Qatl-i-amd, concealing design to commit offence punishable with imprisonment, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Confessional statements, retraction of---Scope---Accused were charged for committing murder of the brother of complainant and his friend---Record showed that both the judicial confessions had been made voluntarily and that there object was to state the truth as was apparent from the other evidence on record which fit in with the prosecution case and that there were hardly any procedural irregularities in recording the same and as such reliance could be placed on both the retracted judicial confessions against the accused persons which corroborated/supported the evidence of eye-witness as identifying the accused persons who murdered the deceased by firearm---Circumstances established that the prosecution had proved the case against the accused persons beyond a reasonable doubt---Appeal was dismissed accordingly.

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

----Ss. 302, 120 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, concealing design to commit offence punishable with imprisonment, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Police witnesses---Scope---Accused were charged for committing murder of the brother of complainant and his friend---Police and Ranger witnesses had no enmity or ill-will towards the accused persons and had no reason to falsely implicate them in the case for example by making up their arrest or foisting pistols on them---Evidence of the police witnesses could be fully relied upon in circumstances---Circumstances established that the prosecution had proved the case against the accused persons beyond a reasonable doubt---Appeal was dismissed accordingly.

Mushtaq Ahmed v. The State 2020 SCMR 474 rel.

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

----Ss. 302, 120 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, concealing design to commit offence punishable with imprisonment, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Recovery of weapon of offence and empties---Reliance---Scope---Accused were charged for committing murder of the brother of complainant and his friend---Although the pistol empty recovered immediately at the wardat did not lead to a positive Forensic Laboratory Report the empties found at the scene and handed over by eye-witness to the Investigating Officer three days after the incident did produce a positive Forensic Laboratory Report when matched with the pistols recovered from the accused on their arrest and as such could be relied upon to link the accused to the murders of the deceased---Even in some cases non recovery of crime empties had not been fatal to the prosecution case where the eye-witness was believed as in the case---Circumstances established that the prosecution had proved the case against the accused persons beyond a reasonable doubt---Appeal was dismissed accordingly.

Qaiser Khan v. The State 2009 SCMR 471 rel.

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

----Ss. 302, 120 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Qatl-i-amd, concealing design to commit offence punishable with imprisonment, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Minor contradictions in the statements of witnesses---Scope---Accused were charged for committing murder of the brother of complainant and his friend---Record showed that all the witnesses were consistent in their evidence and even if there were some contradictions in their evidence, which were considered as minor in nature and not material and certainly not of such materiality so as to effect the prosecution case and the conviction of the accused persons---Evidence of the witnesses provided a believable corroborated unbroken chain of events from eye-witness witnessing the accused persons shooting and murdering the deceased to the deceased being taken to hospital and pronounced dead to the correct identification of the accused persons at the identification parade to the arrest and recovery of the accused persons to the judicial confessions of the accused persons to the deposit of Rs. 5000 in the Bank account of accused for carrying out the target killings to a positive Forensic Science Laboratory Report in respect of the empties which were recovered from the gutter at the place of the incident with the unlicensed pistols which were recovered from the accused on their arrest---Circumstances established that the prosecution had proved the case against the accused persons 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.

Muhammad Irfan for Appellants (in Special Criminal Anti-Terrorism Appeals Nos. 237 and 238 of 2019).

Muhammad Iqbal Awan, Additional Prosecutor General assisted by Rana Khalid and Mehmood Anwar, Special Public Prosecutors, Pakistan Rangers for Respondent (in Special Criminal Anti-Terrorism Appeals Nos. 237 and 238 of 2019).

Muhammad Arif Afzal Khan for Appellant (in Special Criminal Anti-Terrorism Appeals Nos. 242 and 243 of 2019).

Muhammad Iqbal Awan, Additional Prosecutor General assisted by Rana Khalid and Mehmood Anwar, Special Public Prosecutors, Pakistan Rangers (in Special Criminal Anti-Terrorism Appeals Nos. 242 and 243 of 2019).

2023 Y L R 1997

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

SARWAR SHAH and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 41 and Criminal Revision Application No. 165 of 2012, decided on 3rd March, 2022.

(a) 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 94.700 kilograms of charas lying in four bags was recovered from the vehicle driven by accused---Record showed that the accused had put up a strong defence of false implication on account of enmity with the Anti Narcotics Force Officials which he stuck throughout during cross-examination of witnesses, during his S.342, Cr.P.C statement, whilst giving evidence under oath and by calling two defence witnesses---Brother of the accused gave evidence that the accused was taken away by armed men from his estate agency and he lodged such a report at Police Station which was duly exhibited---Other defence witness of Police Station gave evidence that he received the aforesaid application/report which was entered in the police station register and the application duly received by him was exhibited---First Information Report which was lodged against the accomplices of the Anti Narcotics Force Officer had also been exhibited which when all taken together revealed that the Anti Narcotics Force had a serious enmity with the accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed accordingly.

State through Deputy Director (Law) Regional Directorate ANF v. Mujahid Naseem Lodhi PLD 2017 SC 671 and State through Regional Directorate ANF v. Imam Bakhsh 2018 SCMR 2014 ref.

Sabir Ali v. State 2011 SCMR 629 rel.

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

----S. 342---Defence plea---Scope---Court must give due consideration to any defence plea especially raised in the S.342, Cr.P.C. statement---If the court is satisfied that there is a reasonable possibility of the defence case being true then this would react on the whole of the prosecution case and then accused would be entitled to the benefit of the doubt.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Scope---Prosecution case was that 94.700 kilograms of charas lying in four bags was recovered from the vehicle driven by accused---No registration book or any other proof was exhibited that the accused owned or had any connection with the car which he was allegedly driving and the narcotics were recovered from---No driving license was recovered from the accused and according to his defence he could not even drive---Although it was unusual for such a large amount of narcotics to be foisted, a photo of the boot of the car from where the narcotics were recovered on no one's pointation revealed that the boot also contained a CNG bottle which left very little room to stash such a large quantity of narcotics---Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed accordingly.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Safe custody of the recovered substance---Scope---Prosecution case was that 94.700 kilograms of charas lying in four bags was recovered from the vehicle driven by accused---Safe custody of the narcotic from the time of its recovery from the time of it being sent for chemical report was in some doubt as allegedly the narcotic was deposited in the malkhana for two days but no malkhana entry was produced and the person in charge of the malkhana was not examined---Circumstances established that the prosecution had failed to prove its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed accordingly.

(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 of that doubt not as a matter of grace and concession but as a matter of right.

Tariq Pervaiz v. State 1995 SCMR 1345 rel.

Muhammad Farooq and Ms. Faryal Alavi for Appellant (in Criminal Appeal No. 41 of 2012).

Habib Ahmed, Special Prosecutor, ANF for Respondent (in Criminal Appeal No. 41 of 2012).

Habib Ahmed, Special Prosecutor, ANF for Applicant (in Criminal Revision Application No. 165 of 2012).

Muhammad Farooq and Ms. Faryal Alavi for Respondent No.2. (in Criminal Revision Application No. 165 of 2012).

Irshad Ali Jatoi for Respondent No.3 (in Criminal Revision Application No. 165 of 2012).

None present for Respondent No.4 (in Criminal Revision Application No. 165 of 2012).

None present for Respondent No.5 (in Criminal Revision Application No. 165 of 2012).

2023 Y L R 2038

[Sindh]

Before Mohammad Karim Khan Agha and Arshad Hussain Khan, JJ

ZAHEER AHMED alias GUL---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 212 to 214 of 2019, decided on 17th December, 2021.

(a) Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5---Sindh Arms Act (V of 2013), S.23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S.7---Recovery of explosive substance and firearms, act of terrorism---Appreciation of evidence---FIR was lodged with promptitude---Scope---Prosecution case was that one Hand Grenade and one pistol of .32-bore along with loaded magazine having three live rounds were recovered from the possession of the accused---Record showed that the complainant recorded his statement under S. 154, Cr.P.C. on the spot immediately after the arrest and recovery which was lodged as FIR with promptitude---Complainant thus had no time to cook up a false case with the police in order to falsely implicate the accused---Accused had been named in the FIR with a specific role---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

(b) Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5---Sindh Arms Act (V of 2013), S.23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S.7---Recovery of explosive substance and firearms, act of terrorism---Appreciation of evidence---Prosecution case was that one Hand Grenade and one pistol of .32-bore along with loaded magazine having three live rounds were recovered from the possession of the accused---Record showed that the complainant as recorded in the FIR had received spy information that the accused was selling weapons and narcotics from his house which turned out to be correct as when the rangers and the police raided the house of accused, they found arms, ammunition, explosives, charas and money in different currencies---Accused was arrested red handed on the spot from his house from where large recoveries of arms, ammunition and charas were made---On his arrest on the spot, accused was also found to be in possession of an unlicensed pistol and a hand grenade for which he did not have a permit---Accused was also a serving police officer which would enable him to keep large caches of weapons without undue suspicion---On his arrest on the spot the accused immediately took the rangers and police to another part of the house/compound where he pointed out a place where a hidden stash of explosives was kept, which was a place which only he could have known about and as such there was no chance of foisting those explosives which were in huge quantities along with bolts and ball bearings---Even otherwise it was not possible to foist such a large amount of explosive material which it appeared from the recovery of nuts and bolts and ball bearings were intended to be used in terrorist attacks which might have caused massive loss of life---All the prosecution witnesses gave there evidence in a straightforward manner, corroborated each other, were not damaged during cross-examination---Although some of witnesses were police/rangers witnesses, no ill will or enmity had been suggested against them by 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.

Abdul Basit v. The State 2018 SCMR 1425; Anwar Hussain and

others v. The State 2019 YLR 1117; Muhamamd Yaqoob v. The State 2020 SCMR 853; Asif and others v. The State 2020 SCMR 610 and Hakim Khan v. The State 2013 SCMR 777 ref.

(c) Criminal trial---

----Witness---Police Official as witness---Scope---Evidence of police witness is as good as any other witness and can be relied upon.

Mushtaq Ahmed v. The State 2020 SCMR 474 rel.

(d) Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5---Sindh Arms Act (V of 2013), S.23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S.7---Recovery of explosive substance and firearms, act of terrorism---Appreciation of evidence---Contradictions in the statements of witnesses---Scope---Prosecution case was that one hand grenade and one pistol of .32-bore along with loaded magazine having three live rounds were recovered from the possession of the accused---All the prosecution witnesses were consistent in their evidence---Even 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 effect the prosecution case and the convictions of 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.

Zakir Khan v. State 1995 SCMR 1793 and Khadim Hussain v. The State PLD 2010 SC 669 rel.

(e) Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S.7---Recovery of explosive substance and firearms, act of terrorism---Appreciation of evidence---Disclosure by accused---Proof---Un-broken chain of evidence---Prosecution case was that one hand grenade and one pistol of .32-bore along with loaded magazine having three live rounds were recovered from the possession of the accused---Evidence of the witnesses had provided a believable corroborated unbroken chain of events from the receipt of the spy information by the complainant to him calling for back up to him and other police and rangers raiding the house of the accused and arresting and making the recoveries from the accused part of the house on the spot to the accused taking them to another part of the compound where on his pointation he revealed where a massive amount of explosive making material had been hidden---Recovered weapons (except one) as per Forensic Science Laboratory Report were all found to be in working condition---Recovered hand grenade was found to be live and containing explosive material as per Bomb Disposal Unit Report---Recovered explosive material were all found to be so as per forensic report---Based on the particular facts and circumstances of that case where the recoveries were all made from one house with one entrance within the same compound it was found that there was no need for there to be separate mashirnama's of recovery and that a joint mashirnama was legally justified---Accused did not give evidence under oath or call any defence witness in support of his defence---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Nasir Mahmood for Appellant.

Saadat Ali, Special Public Prosecutor Rangers for the State.

Muhammad Iqbal Awan, Additional Prosecutor General Sindh for Respondent.

2023 Y L R 2068

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto, J

MUHAMMAD ASLAM and 2 others---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No. S-334 of 2021, decided on 13th September, 2021.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss. 376, 511, 147, 148, 149, 457, 337-A(i) & 337-F(i)---Attempt to commit rape, house trespass at night, hurt, rioting, unlawful assembly--- Pre-arrest bail, refusal of--- Heinous offence---Reasonable grounds connecting accused person(s) with alleged offences---Assault/criminal force was allegedly used by the petitioners (three in number) against a widow/complainant in presence of her two minor daughters in her house at night time with intent to outrage her modesty---Contents of the FIR, Medical Legal Certificate and statements under S. 161 of the Criminal Procedure Code, 1898, of two minor daughters of the complainant (victim/widow) as well as two witnesses who came running to the house of the complainant at the time of incidence, showed that the petitioners were involved in a heinous offence---Complainant had received four (04) injuries which were corroborated by the medical evidence---Although the name of one of the petitioners/accused persons was placed in Column 2 of the Challan, however, opinion of the Investigation Officer was not binding upon the Court which had to formulate its own opinion after examining the record---Reasonable grounds existed for believing that the petitioners had committed the alleged offences---Grant of pre-arrest bail was extra-ordinary remedy in criminal jurisdiction, which was diversion of usual course of law in arrest in cognizable offence, protecting the innocent person being hounded up on trumped up charges through abuse of process of law, therefore, petitioners seeking judicial protection were required to reasonably demonstrate that intended arrest was calculated to humiliate them with taint of mala fide---Pre-arrest was not a substitute for post-arrest bail in every run of the mill criminal case as the same seriously hampered the course of investigation---Petitioners had failed to make out their case for the grant of extra-ordinary relief of pre-arrest bail---Pre-arrest bail was refused, in circumstances.

Rana Abdul Khaliq v. The State and others 2019 SCMR 1129 ref.

Waqar Ahmed Memon for Applicants.

Applicants/accused are present on interim pre-arrest bail.

Shahid Ahmed Shaikh, Additional P.G. for the State.

2023 Y L R 2072

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

UMAIR ASHRAF---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 334 and Criminal Revision No. 78 of 2010, decided on 26th January, 2022.

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

----Ss. 302 & 380---Qatl-i-amd, theft in dwelling house--- Appreciation of evidence---Delay of one day in lodging the FIR---Scope---Accused was charged for committing murder of the brother of the complainant and also steeling his car and other precious articles from his flat---Although the FIR was lodged a day after the incident, however, said delay was not found to be fatal to the prosecution case as the delay had been explained by the complainant having travel from "P" to "K"---Complainant had not tried to falsely implicate the accused in the case as the FIR was lodged against unknown persons---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) Penal Code (XLV of 1860)---

----Ss. 302 & 380--- Qatl-i-amd, theft in dwelling house--- Appreciation of evidence---Last seen evidence---Scope---Accused was charged for committing murder of the brother of the complainant and also steeling his car and other precious articles from his flat---Watchman of the building where flat of the deceased was situated appeared as witness---Said witness did not know the accused and only got fleeting glances of him at night when it was dark and later one evening---Said witness could not see whether accused was injured, which apparently he was according to other witnesses---Witness did not give any hulia of the accused in his S.161, Cr.P.C statement---Witness was not brought before any identification parade to identify the accused and could not confidently identify him in court---Witness, in his evidence, could not even say whether the accused who was present during the recording of his S. 164, Cr.P.C statement before the Magistrate was the same person whom saw with the deceased and as such could not safely rely on his evidence that the accused was the boy who was last seen with the deceased---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.

Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Hashim Qasim and another v. The State 2017 SCMR 986; Fayyaz Ahmad v. The State 2017 SCMR 2026; Imran alias Dully and another v. The State and others 2015 SCMR 155; Shahbaz v. The State 2016 SCMR 1763; Muhammad Ishaq and another v. The State 1997 SCMR 596; Qaddan and others v. The State 2017 SCMR 148; Imtiaz alias Taj v. The State and others 2018 SCMR 344; Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103; Muhammad Aslam v. The State PLD 2009 SC 777; Farrukh Sayyar v. Chairman NAB, Islamabad 2004 SCMR 1; Meem Bahadar v. The State 2013 PCr.LJ 1490; Mian Khan v. The State PLD 2014 Pesh. 127; Faisal Aleem v. The State PLD 2010 SC 1080; Sultan Ahmed v. Addl. Sessions Judge-I, Mianwali PLD 2004 SC 758; Syed Hamid Mukhtar Shah v. Muhammad Azam 2005 SCMR 427; Muhammad Ishaq v. The State 2009 SCMR 135; Mst. Sabeeha v. Ibrar 2012 SCMR 74; Khurshid v. The State PLD 1996 SC 305; Talib Hussain v. The State 1995 SCMR 1538 and Iftikhar Ahmad v. The State 2019 SCMR 1224 ref.

Fayyaz Ahmed v. State 2017 SCMR 2026 and Muhammed Abid v. State PLD 2018 SC 813 rel.

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

----Ss. 302 & 380---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, theft in dwelling house---Appreciation of evidence---Identification of accused---Scope---Accused was charged for committing murder of the brother of the complainant and also steeling his car and other precious articles from his flat---Record showed that a number of witnesses who were playing cricket outside the flats gave evidence that they had seen a person trying to drive a car which later was established belonged to the deceased and that they took him to hospital for treatment for a hand injury and who dropped them off an hour later after receiving treatment---None of the said witnesses gave any hulia of the accused as being the injured person in the car in very belated S.161 Cr.PC statements, they were not taken before an identification parade to identify the accused as the injured person driving the car and only one of the witnesses were able to identify the accused in court---Said fact heavily broken the linkage of the accused to the stolen car of the deceased which the accused was allegedly driving---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.

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

----Ss. 302 & 380---Qatl-i-amd, theft in dwelling house--- Appreciation of evidence---Place of arrest of accused and recovery was doubtful---Scope---Accused was charged for committing murder of the brother of the complainant and also steeling his car and other precious articles from his flat---Record showed that the place of the arrest of accused and recovery of the stolen vehicle were also in doubt---In the present case, the witness of last seen evidence had pointed out the car and the accused to the police where the accused was arrested and car recovered on the pointation of said witness whose name appeared on the memo. of arrest and recovery, however, according to the evidence of said witness he was not present at the time of arrest and recovery and did not sign any memo. of arrest and recovery---Court witness deposed that the accused was arrested from his house---Such was a major contradiction which casted doubt on the evidence of all the witnesses---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.

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

----Ss. 302 & 380---Qatl-i-amd, theft in dwelling house--- Appreciation of evidence--- Confession before police---Scope---Accused was charged for committing murder of the brother of the complainant and also steeling his car and other precious articles from his flat---Record showed that the accused confessed before the police numerous times that he murdered the deceased---Confession before the police was inadmissible in evidence---Accused was not taken before a Judicial Magistrate to record his confession---Record transpired that one Investigating Officer was prevented by his superiors from having the judicial confession of the accused recorded---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.

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

----Ss. 302 & 380---Qatl-i-amd, theft in dwelling house---Appreciation of evidence---Medical evidence---Scope---Accused was charged for committing murder of the brother of the complainant and also steeling his car and other precious articles from his flat---According to the charge and the case of the prosecution the deceased was stabbed, however that was not supported by the medical evidence which noted that the injuries were caused by a blunt instrument not a sharp instrument---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.

(g) Criminal trial---

----Benefit of doubt--- Principle---Prosecution must prove its case against the accused beyond a reasonable doubt---Benefit of doubt will go to the accused by way of right as opposed to concession.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Syed Junaid Alam for Appellant (in Criminal Appeal No. 334 of 2010).

Abrar Ali Khichi, Additional Prosecutor General for the State (in Criminal Appeal No. 334 of 2010).

Jamal Ahmed Mufti for the Complainant (in Criminal Appeal No. 334 of 2010).

Jamal Ahmed Mufti for the Applicant (in Criminal Revision No. 78 of 2010).

Abrar Ali Khichi, Additional Prosecutor General for the State (in Criminal Revision No. 78 of 2010).

Syed Junaid Alam for Respondent (in Criminal Revision No. 78 of 2010).

2023 Y L R 2101

[Sindh]

Before Muhammad Shafi Siddiqui, J

Syed QADIR DAD SHAH---Plaintiff

Versus

PAKISTAN INTERNATIONAL AIRLINE COMPANY LIMITED (PIACL) through President/ Chief Executive Officer and others---Defendants

Suit No. 1027 of 2022, decided on 15th December, 2022.

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for declaration---Interim injunction, refusal of---Scope---Plaintiff challenged the amendment brought to "Job Description Manual" that concerned the qualification of Chief Flight Surgeon and through instant application under O. XXXIX, Rr.1 & 2, C.P.C. sought its suspension---Validity---Chief Flight Surgeon of Aircrew Medical Center has a special privilege of being an Airline Aviation Medical Officer/Designated Medical Examiner---For the post of Airline Aviation Medical Officer/Designated Medical Examiner one year on job training from Pakistan Civil Aviation Authority at the airline's Crew Medical Center is mandatory; which is then followed by a formal application and pre-requisites such as passing of examination---Necessary formal training is required for being an Airline Aviation Medical Officer/Designated Medical Examiner and it is inevitable for effective monitoring of aircrew staff---It was not too late for the plaintiff to apply and if he so chooses that may be dealt strictly in accordance with law---However, for the purposes of injunction application, the plaintiff had not been able to make out a prima facie case, nor balance of inconvenience was in his favour and no loss would be caused in case injunction was refused---Application being misconceived was dismissed.

Muhammad Saad Siddiqui for Plaintiff.

Jawad A. Sarwana for Defendants Nos.1 to 4.

Abdul Qayoom Abbasi for Defendants Nos.2, 6, 8 and 9.

Qazi Ayazuddin, Assistant Attorney General for Defendant No.10.

2023 Y L R 2117

[Sindh]

Before Muhammad Saleem Jessar, J

HABIBULLAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 1685 of 2020, decided on 8th September, 2021.

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

----S.498---Penal Code (XLV of 1860), Ss. 302, 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, unlawful assembly---Bail, refusal of---Non-bailable offence---Extra-ordinary relief of pre-arrest bail---Scope---Petitioner was nominated in FIR with specific role of causing hatchet blow to deceased lady, which landed on her and resulted in her death---Offence with which the petitioner was charged carried capital punishment, therefore, he was not entitled for concession of bail particularly extra-ordinary relief in shape of pre-arrest---Mere fact that complainant of the present case had absconded in a previous FIR having been lodged by brother of the petitioner/ accused, was no ground for granting extraordinary relief---No mala fide on the part of prosecution/complainant had been alleged---Petitioner had failed to make out a case for extra-ordinary relief of concession of bail---Pre-arrest was declined, in circumstances .

Rana Abdul Khaliq v. The State and others 2019 SCMR 1129 ref.

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

----S.498---Non-bailable offence---Pre-arrest bail---Scope---Bail in non-bailable offence has always been considered by the Courts only where case for bail is made-out---If there appear reasonable grounds for believing that accused is guilty of an offence punishable with death or imprisonment of life, he would not be released on bail until and unless the case is covered by any of the provisions in subsection(1) of S. 497, Criminal Procedure Code, 1898---Bail can not be granted to accused, without considering merits of the case, merely on the plea that every accused is presumed to be innocent unless proved otherwise, as the very concept and purpose of drawing a line between bailable and non-bailable offences as well as various kinds of punishments as prescribed by the law, shall stand frustrated---Discretion vested in the Courts is to be exercised in a judicial fashion and in the light of facts of each case---Where the prosecution collects enough material to constitute reasonable grounds to connect the accused with the alleged offence, the Courts are always slow to accede to the request of bail.

Raheel Ali Bhatti along with Applicant (on bail).

Syed Meeral Shah, Addl. Prosecutor General, Sindh along with SIP Shakeel Mehmood of P.S Peerabad, Karachi for the State.

2023 Y L R 2144

[Sindh]

Before Muhammad Saleem Jessar, J

MUMTAZ UL HAQ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 317 of 2015, decided on 8th October, 2021.

(a) Prevention of Corruption Act (II of 1947)---

----Ss. 5-B, 5-C & 5(2)---Declaration of assets, made assets disproportionate to known sources of income, criminal misconduct---Appreciation of evidence---Benefit of doubt---Delay in lodging FIR not explained---Scope---Accused was charged for criminal misconduct and making assets beyond his means and also failed to furnish declaration of his assets---Record showed that the present case was initiated against the accused on the basis of complaint which, as per statement of Investigating Officer, was received by him from the Directorate of Anti Corruption Establishment on 15.08.1995---It was not understandable as to how Investigating Officer took a long period of about two years in ascertaining the truth or otherwise of the contents of said complaint, as admittedly FIR was registered on 05.07.1997---There was also lethargy of great scale on the part of complainant in moving such complaint as he himself admitted in his complaint that accused was involved in corruption and misappropriation from last twenty years---However, it had not been explained that if the accused was involved in the acts of corruption for the last twenty years and thereby accumulated properties which were beyond his known sources of income, then as to what prevented the complainant to move complaint against the accused at an earlier stage---Even if it was presumed, for the sake of arguments, that the Investigating Officer registered the FIR after receiving permission from the competent authority, even then there was delay of about eleven days in lodging the FIR according to his own admission made in his evidence---Even, no explanation had been offered in the FIR for such delay---Such fact spoke volumes about the conduct of prosecution, which created doubt regarding involvement of the accused in the commission of alleged offence---Circumstances established that prosecution had not been successful in proving its case against the accused beyond reasonable doubt---Appeal against conviction was accordingly allowed.

Ayub Masih v. The State PLD 2002 SC 1048 and Syed Altaf Hussain Shah v. State 2018 YLR 482 rel.

(b) Prevention of Corruption Act (II of 1947)---

----Ss. 5-B, 5-C & 5(2)---Declaration of assets, made assets disproportionate to known sources of income, criminal misconduct---Appreciation of evidence---Benefit of doubt---Delay of eight years in submitting challan before Court---Accused was charged for criminal misconduct and making assets beyond his means and also failed to furnish declaration of his assets---Record showed that the Investigating Officer took almost eight years in submitting challan before the competent Court of law---In every criminal case, Officer Incharge of Police Station was required to submit challan within 14 days of the registration of FIR---If investigation was not completed within stipulated period of 14 days then only further time of three days could be granted for submission of interim challan---Thus, it could safely be held that the delay of about eight (8) years in submission of challan was sufficient to vitiate the entire proceedings---Even, if it was presumed that the Investigating Officer of the case was waiting for the permission of competent authority for submission of challan, the same was not supported by any provision of law---Circumstances established that prosecution had not been successful in proving its case against the accused beyond reasonable doubt---Appeal against conviction was accordingly allowed.

Mian Ghulam Ijaz and others v. The State and others PLD 2018 Lah. 151 and Adnan Prince v. The State through P.G., Punjab and another PLD 2017 SC 147 rel.

(c) Prevention of Corruption Act (II of 1947)---

----Ss. 5-B, 5-C & 5(2)---Declaration of assets, made assets disproportionate to his known sources of income, criminal misconduct---Appreciation of evidence---Non-examination of complainant not explained plausibly---Accused was charged for criminal misconduct and making assets beyond his means and also failed to furnish declaration of his assets---Significantly, the prosecution could not examine complainant---Although the reason for non-examination of complainant given by the prosecution was that he had expired during the proceedings---However, it seemed that as per evidence of complainant's son, complainant expired on 11.12.2006 whereas FIR was registered in the year 1997 and the challan was presented before the Court in 2005 after a long delay of about eight (8) years and then charge was also framed after more than three years mostly for the reason of non-availability of police papers---In such circumstances, the contents of the complaint moved by the complainant, on the basis whereof, the proceedings were initiated, could not be proved through recording of his evidence---Although the Investigating Officer had given elaborate details of the properties allegedly purchased by the accused which, according to him, were beyond the known sources of his income, however, he had failed to give details of the income either earned by the accused in the shape of his salary etc. or received by him through other sources, details whereof had been given by him in his statement on oath---Circumstances established that prosecution had not been successful in proving its case against the accused beyond reasonable doubt---Appeal against conviction was accordingly allowed.

(d) Prevention of Corruption Act (II of 1947)---

----Ss. 5-B, 5-C & 5(2)---Declaration of assets, made assets disproportionate to his known sources of income, criminal misconduct---Appreciation of evidence---Defective investigation---Failure to inquire into income and earnings of accused---Accused was charged for criminal misconduct and making assets beyond his means and also failed to furnish declaration of his assets---Although, the Investigating Officer during the course of investigation and even in his evidence had alleged that the accused had acquired the properties which were beyond the known sources of his income, however, he had failed to enquire into and give details regarding the income of the accused and other earnings of the accused, which was fatal to the prosecution in such types of cases---Investigating Officer had also failed to record statements of the wife, mother-in-law, brother and other relatives of the accused in order to ascertain the truth or otherwise of complainant's allegations as well as the defence put forward by the accused---At the same time, prosecution was also duty-bound to establish, by producing tangible evidence, that the accused had misused his official position/authority in order to acquire the properties disproportionate to known sources of his income---Circumstances established that prosecution had not been successful in proving its case against the accused beyond reasonable doubt---Appeal against conviction was accordingly allowed.

Moeen Jan Naeem v. Islamic Republic of Pakistan through Secretary, Establishment Division, Islamabad and others 1991 PLC (C.S.) 181 and The State and others v. M. Idrees Ghauri and others 2008 SCMR 1118 ref.

Sardar Muhammad Naseem v. The State 2016 PCr.LJ 300; Ghulam Sarwar Khan Lalwani v. The State 2016 PCr.LJ 1343; Brig. (R) Imtiaz Ahmad v. The State PLD 2017 Lah. 23; Maryam Nawaz Sharif v. Chairman, NAB and 2 others PLD 2020 Lah. 205; Anwar Badshah v. Chairman, National Accountability Court 2013 PCr.LJ 1607 and The State through Chairman NAB v. Syed Hamid Umer 2020 PCr.LJ 514 rel.

(e) Criminal trial---

----Benefit of doubt--- Principle---Conviction must be based and founded on unimpeachable evidence and certainty of guilt---Any doubt arising in the prosecution case must be resolved in favour of the accused.

Wazir Muhammad v. The State 1992 SCMR 1134 and Shamoon alias Shamma v. The State 1995 SCMR 1377 rel.

(f) Prevention of Corruption Act (II of 1947)---

----Ss. 5-B, 5-C & 5(2)---Declaration of assets, made assets disproportionate to his known sources of income, criminal misconduct---Appreciation of evidence---Benefit of doubt---Admissions by witnesses denting the prosecution case---Accused was charged for criminal misconduct and making assets beyond his means and also failed to furnish declaration of his assets---Record showed that none of the prosecution witnesses had specifically involved the accused in amassing properties beyond known sources of his income by misusing his official position/authority and/or indulging in corruption or corrupt practices---One of the prosecution witnesses admitted that he had no knowledge about property purchased by the accused in his own name or in the name of his dependents, however, there were some allegations of corruption against him---Likewise, another witness, who was Honorary Secretary of a Housing Society at the relevant time, admitted that accused had sent an application intimating the society to have purchased a plot jointly with his mother---Said witness further admitted that an agreement showing mother of accused as joint partner was sent and placed on record---Said witness further admitted that mother of accused had executed a Relinquishment Deed in respect of her share in the said property in favour of accused---Investigating Officer of the case in his cross-examination also made various admissions which also put serious dents in the prosecution case---Circumstances established that prosecution had not been successful in proving its case against the accused beyond reasonable doubt---Appeal against conviction was accordingly allowed.

Noor Mohammad Dayo for Appellant along with appellant on bail.

Talib Hussain Memon, Asstt. P.G. Sindh for the State.

2023 Y L R 2185

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

ANWAR and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. S-68 of 2020, decided on 3rd June, 2022.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Delay of three days in lodging FIR---Unwitnessed occurrence---Accused were charged that they in furtherance of their further intention committed murder of the brother of the complainant---Record showed that the incident took place on 01-04-2017 at about 11:00 p.m. of the night and the deceased was brought before the doctor for examination and postmortem on 02-04-2017 at 12:25 a.m.---Postmortem was conducted between 1:45 to 2:45 am (as per postmortem report), however the FIR was registered on 03-04-2017 with the delay of about three days---Said delay had not been explained by the prosecution properly---Complainant during cross-examination stated that the delay was caused as they were hoping that the matter would be settled out side of the court in jirga---Complainant during cross-examination stated that dead body was taken directly to the hospital and Police Officer had come at the hospital for completing formalities of the dead body---Complainant had not deposed a single word that any entry in respect of incident was recorded by the police---However, Investigating Officer deposed that on 02-04-2017 he was duty officer and at 12:50 a.m. complainant appeared at police station and informed that his brother had been murdered and further informed that they had shifted the dead body to the hospital for which he recorded such entry No.13 which was also exhibited in his evidence---Investigating Officer during cross-examination admitted that the complainant had not disclosed to him the name of the accused persons who committed the murder---Entry No.13 had been examined carefully and therein the names of the accused persons the manner in which incident took place (as stated in FIR), the names of the witnesses who as per FIR witnessed the incident, were not mentioned---However, it was mentioned in station entry that FIR would be registered after the funeral ceremony---Investigating Officer during his cross-examination stated that on the date of incident, the complainant did not disclose the names of the accused persons on his first appearance at police station---On the next day of the incident, the complainant did not appear at the police station---Complainant had disclosed that the incident occurred at night time and if the names of accused persons would be cleared, then he would disclose the same---Perusal of the said evidence produced by the prosecution showed that the incident was an un-witness incident and the FIR was registered after consultation and deliberations---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed accordingly.

Sajjan Solangi v. The State 2019 SCMR 872; Muhammad Asif v. The State 2017 SCMR 486; Abdul Hamid v. The State PLD 1980 Pesh. 25; Muhammad Imran and others v. The State 2021 YLR 95 and Umar Hayat and 3 others v. The State 1997 SCMR 1076 ref.

Pervaiz Khan and another v. The State 2022 SCMR 393 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence--- Benefit of doubt---Identification of the accused persons at the time and place of incident doubtful---Accused were charged that they in furtherance of their further intention committed murder of the brother of the complainant---Identification of the accused persons at the time and place of incident in the present case was doubtful---Admittedly, the incident took place at 11:00 p.m. in the night and the complainant party after hearing the cries of deceased reached there and witnessed the incident in torch lights---Complainant stated during cross-examination that they all had torches with them and other two eye-witnesses also deposed the same but surprisingly during the investigation such torch lights were not taken into possession by the Investigation Officer nor were the same produced before him or before the court by the prosecution witnesses which made the identification of accused as doubtful---Further doubt was visible in identification of the accused persons from the evidence of witnesses---Complainant stated that he identified the accused persons from a distance of 20/25 paces; eye-witness stated that he identified the accused persons from a distance of 4/5 paces; and an other eye-witness stated that he identified the accused persons from a distance of 30/40 paces---Identification of three accused persons amongst six with specific weapons and role during the night hours with torch lights from the distance stated by the witnesses created very serious doubt in 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 accordingly.

Sardar Bibi and others v. Munir Ahmed and others 2017 SCMR 344 and Abdul Rahim v. Ali Bux and 4 others 2017 PCr.LJ 228 rel.

(c) 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---Inconsistency---Accused were charged that they in furtherance of their common intention committed murder of the brother of the complainant---Prosecution witnesses stated that accused caused iron rod blow to the deceased which hit his head and then other accused caused lathi blow to the deceased on the same place of the head---No one could believe such type of evidence of prosecution witnesses as according to them the incident took place at night hours and they had seen the incident in torch lights from a distance---In such circumstances, it was not possible to witnesses the incident in the manner as deposed by the prosecution witnesses---As per the evidence of Medical Officer, the deceased received solitary injury on his head showing fracture on the skull ---From the evidence produced by the prosecution it was also not clear as to whose blow hit the deceased out of two accused---If the blows of both the accused hit the deceased then there must be two injuries on the person of deceased but as per postmortem report deceased received only one injury---Ocular account was in conflict with medical evidence, in circumstances---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed accordingly.

Muhammad Shafi alias Khuddoo v. The State and others 2019 SCMR 1045 rel.

(d) Criminal trial---

----Medical evidence---Scope---Medical evidence neither pinpoints the accused nor establishes the identity of the accused, and at the most can depict the locale of injury, duration, the weapon used etc.---Medical evidence can never be considered to be a corroborative piece of evidence and at the most can be considered to be supporting evidence only to the extent of specification of the seat of injuries, the weapon used, duration, the cause of death etc.

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

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence on the pointation of accused--- Doubtful--- Accused were charged that they in furtherance of their further intention committed murder of the brother of the complainant---Iron rod allegedly used in the commission of offence by the accused was recovered on his pointation---On scanning the evidence of prosecution in respect of recovery, it was established that iron rod was foisted upon the accused to strengthen the case of complainant---Mashir of recovery deposed that he along with Investigating Officer, two Police Constables and accused proceeded on police mobile from police station and accused led them into his place and took out an iron rod from its ceiling and produced the same before Investigating Officer by disclosing that it was the same iron rod with which he had committed murder of deceased---Iron rod was wrapped in plastic and it was blood stained---Said witness had not deposed a single word to establish that after the recovery said iron rod was sealed, but he identified the iron rod present in court in sealed condition as same---Investigating Officer had not stated a single word in his examination-in-chief that the iron rod was wrapped in plastic and it was blood stained nor that he sealed the iron rod at the time of its recovery---Investigating Officer also did not disclose the names of other Police Officials who were with him at the time of recovery of the iron rod---Investigating Officer also admitted that the date of recovery was not mentioned on sealing cloth of iron rod---Said iron rod was not sent for Forensic Science Laboratory nor was any report produced by the prosecution before the Trial Court---All the said facts and the circumstances made the recovery of iron rod from the accused as doubtful---Incident took place on 01.04.2017 and the accused was arrested on 11-04-2017 whereas recovery of iron rod was shown on 16-04-2017, i.e. after about 16 days from the incident and 5 days from the arrest of accused---Importantly, it was not expected from an accused person to keep a weapon (stained with blood) as souvenir because during the intervening period there was ample time to destroy or at least washout the weapon---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed accordingly.

Sardar Bibi and others v. Munir Ahmed and others 2017 SCMR 344 and Muhammad Asif v. State 2017 SCMR 486 rel.

(f) Criminal trial---

----Recovery of weapon of offence---Scope---Recovery of weapon of offence is only a corroborative piece of evidence---In absence of substantive evidence, it is not considered sufficient to hold the accused person guilty of the offence charged---When substantive evidence failes to connect the accused person with the commission of offence or is disbelieved, corroborative evidence is of no help to the prosecution as the corroborative evidence can not by itself prove the prosecution case.

Saifullah v. State 1985 SCMR 410; Ali Muhammad v. Bashir Ahmed 2003 SCMR 868; Israr-U1-Haq v. Muhammad Fayyaz 2007 SCMR 1427 and Hayatullah v. State 2018 SCMR 2092 rel.

(g) Criminal trial---

----Appreciation of evidence---Principle---Mere conjectures and probabilities can not take the place of proof---If a case is decided merely on high probabilities regarding the existence or nonexistence of a fact to prove the guilt of a person, the golden rule of giving benefit of the doubt to the accused person, which has been a dominant feature of the administration of criminal justice, will be reduced to a naught.

Muhammad Luqman v. The State PLD 1970 SC 10 rel.

(h) Criminal trial---

----Benefit of doubt--- Principle---Prosecution is under obligation to prove its case against the accused person on the standard of proof required in criminal cases, namely, beyond reasonable doubt standard---Prosecution canot be said to have discharged such obligation by producing evidence that merely meets the preponderance of probability standard applied in civil cases---If the prosecution fails to discharge its said obligation and there remains a reasonable doubt, not an imaginary or artificial doubt, as to the guilt of the accused person, the benefit of that doubt is to be given to the accused person as of right, not as of concession.

Tariq Pervez v. State 1995 SCMR 1345; Ayub Masih v. State PLD 2002 SC 1048 and Naveed Asghar and 2 others v. The State PLD 2021 SC 600 rel.

Amanullah G. Malik for Appellants.

Syed Mukhtiar Hussain Gul for the Complainant.

Shafi Muhammad Mahar, Deputy Prosecutor General for the State.

2023 Y L R 2227

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi, J

ABDUL SAMAD BROHI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-12 of 2022, decided on 9h May, 2023.

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

----S. 23(1)(a)---Possession of illicit weapon---Appreciation of evidence---Benefit of doubt---Infirmities---Prosecution case was that an unlicensed gun 12 bore along with five live cartridges of 12 bore were recovered from the possession of the accused---Evidence of complainant was that a gun and five live cartridges of 12 bore were recovered from the accused which was sealed at the spot under the mashirnama prepared in the presence of the mashirs who had signed the same---However, when such piece of evidence was confronted with the evidence of mashir, he did not depose even a single word in respect of signature of other mashir---Said singular infirmity in the case itself was sufficient to hold that the prosecution had not proved the case against the accused beyond the shadow of reasonable doubt---Prosecution witnesses in their evidence deposed that when they saw the accused he tried to escape from there but the first document prepared at the spot (Mashirnama of arrest and recovery) and the FIR were silent about the escape of the accused, however it was mentioned in the mashirnama and the FIR that accused avoided arrest---All the witnesses of arrest and recovery were Police Officials and no efforts were made to join the private witnesses in the recovery proceedings though police had sufficient time after receiving spy information---Appeal against conviction was allowed, in circumstances.

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

----S. 23(1)(a)---Possession of illicit weapon---Appreciation of evidence---Benefit of doubt---Safe transmission of the recovered weapon for analysis doubtful---Prosecution case was that an unlicensed gun 12 bore along with five live cartridges of 12 bore were recovered from the possession of the accused---Police witness who deposited the gun for the Forensic Science Laboratory Report had not produced the entry of the roznamcha register showing him receiving the case property---In his examination-in-chief, said witness had deposed that Investigating Officer handed over to him one parcel of case property, while in his cross-examination, he had pointed out from his statement under S. 161, Cr.P.C., that he had received the parcel of gun and empties separately, which was not the case of prosecution---Perusal of report reflected that the property of the main case and present case were sent together---However, it did not reflect from the report that the gun and the cartridges allegedly recovered from the accused were sent for Forensic Science Laboratory and only the crime number was mentioned---Police Constable who carried the case property and deposited the same with the office of Forensic Science Laboratory, deposed that on 16.02.2021 he received the case property from the Investigation Officer but deposited the same with the office of Ballistic Expert on 17.02.2021, but he had not explained as to where the property was for one day---Such failure created very serious doubt in the safe transmission of the alleged recovered gun and made the recovery doubtful---Appeal against conviction was allowed, in circumstances.

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

----S. 23(1)(a)---Criminal Procedure Code (V of 1898), S. 342--- Possession of illicit weapon---Appreciation of evidence---Evidence not confronted to the accused in his S.342, Cr.P.C. statement---Prosecution case was that an unlicensed gun 12 bore along with five live cartridges of 12 bore were recovered from the possession of the accused---Piece of evidence which had not been confronted to the accused in his statement under S. 342, Cr.P.C. could not be used against him---Ballistic Expert Report was not confronted to the accused in his statement under S. 342, Cr.P.C.---If Ballistic Expert Report was excluded from the consideration then there remained nothing available with the prosecution to establish that the alleged gun was in working condition---Appeal against conviction was allowed, in circumstances.

(d) Criminal trial---

----Benefit of doubt--- Principle---Conviction must be based on unimpeachable evidence and certainty of guilt---Any doubt arising in the prosecution case must be resolved in favour of the accused.

Wazir Mohammad v. The State 1992 SCMR 1134; Shamoon alias Shamma v. The State 1995 SCMR 1377 and Naveed Asghar and 2 others v. The State PLD 2021 SC 600 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance creats reasonable doubt in the prudent mind, then its benefit will be extended in favour of the accused not as a matter of grace or concession, but as a matter of right.

Muhammad Masha v. The State 2018 SCMR 772 rel.

Abdullah Kehar for Appellant.

Aitbar Ali Bullo, Deputy Prosecutor General for the State.

2023 Y L R 2241

[Sindh (Hyderabad Bench)]

Before Amjad Ali Sahito, J

ALI NAWAZ SHAH through duly authorized attorney---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary and 14 others---Respondents

Election Petition No.S-12 of 2018, decided on 12th March, 2022.

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

----S. 174---Corrupt practice---Proof---Charge of corrupt practice cannot be proved on mere suspicion or doubt without giving date and time of a specific place/polling station.

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

----Ss. 174 & 183---Corrupt and illegal practice--- Presumption--- Scope---Presumption of innocence is available to the person charged---Charge is to be proved to standard of proof as in a criminal trial.

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

----Ss. 139, 174 & 183---Election Rules, 2017, R.142---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Corrupt and illegal practice---Proof---Onus to prove---Principle--- Material facts---Petitioner contested election for Provincial Assembly but remained unsuccessful---Petitioner assailed election of respondent/ returned candidate on the plea of use of corrupt and illegal practices by the latter---Validity---Onus of proof was not discharged merely on preponderance of probabilities but standard of proof was required to be proved like a criminal or quasi-criminal charge, for which credible and reliable evidence was required to prove the charge beyond any reasonable doubt---Burden to prove illegal and corrupt practices was heavily upon petitioner and allegations were to be proved with such standard as was required for proving charge in criminal trial---In case of doubt arising out of material placed before Election Tribunal, its benefit was to go to the returned candidate---Election results were not to be set aside lightly---Will of electorates should ordinarily be respected---Setting aside an election result was a serious matter and should not be done lightly---Transparency of elections was the core of democratic system---Material facts were to include complete chain of material event and basis in support of allegations---Material facts meant a complete bundle of facts which were sufficient for giving cause of action and must be specifically averted as to how the result of petitioner was materially affected---There should not be any vagueness in allegation and in case the petitioner does not comply with such requirement, there will be lack of material facts and particulars and the election petition can be dismissed---Allegations levelled by petitioner in the present case were frivolous, vague and indefinite without support of adequate statements of material facts regarding truth for a recount---High Court declined to interfere in election results as petitioner failed to establish the allegations---Election petition was dismissed, in circumstances.

1969 SCMR 189; 2001 SCMR 1700; 2004 SCMR 244; 1987 MLD 37; 1986 CLC 2499; 2020 YLR 2031; 2020 YLR 132; PLD 2020 SC 718; 2021 SCMR 85; PLD 2016 SC 97; 2017 SCMR 292; PLD 2017 SC 684; 2018 SCMR 93; Muhammad Saeed v. Election Tribunal, West Pakistan PLD 1957 SC 91; Hafeezuddin v. Abdul Razzaq PLD 2016 SC 79; Nawab Ali Wassan v. Ghous Ali Shah 2018 SCMR 87; Jam Madad Ali v. Asghar Ali Junejo and others 2016 SCMR 251 and Bhabhi v. Sheo Govind and others AIR 1975 SC 2117 ref.

Noorul Haq Qureshi and Saad Salman Ghani for Petitioner.

Fazal Qadir Memon, Assistant Attorney General for Pakistan along with Zaheer Abbas (Law Officer ECP) for Respondent No.1.

Ex: parte Respondents Nos. 2 to 5 and 7 to 14.

Ali Almani for Respondents No. 6.

2023 Y L R 2292

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

NIAZ HUSSAIN SOOMRO---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.S-69 of 2018, decided on 14th April, 2022.

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

----Ss. 302, 337-H(2), 114, 148 & 149---Qatl-i-amd, rash or negligent act to endanger human life or personal safety of others, abettor present at the time of crime, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Delay in lodging FIR---Inconsequential---Accused were charged for committing murder of the brother of the complainant by firing---Delay in lodging of the FIR had been fully explained, as the deceased after sustaining injuries was shifted to Police Station, wherefrom a letter for his treatment was obtained then he was rushed to hospital and the Medico-Legal Officer, keeping in view his condition, referred him to other hospital, where he breathed his last---In such a situation, when a person was fighting for his life, it could not be expected that his relatives would leave him in such a precarious condition and would go to the police station and lodge an FIR---Even, in such case, it would be difficult to lodge a proper FIR, as the fate of the injured was yet to be determined i.e. whether he survived the assault or he succumbed to his injuries---Thus, the delay so occasioned in lodgment of FIR in the present case had been fully explained and that plea was not helpful to 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.

Muhammad Akram v. The State 2009 SCMR 230; Pathan v. The

State 2015 SCMR 315; Najaf Ali Shah v. The State 2021 SCMR 736; Abdul Khalique v. The State 2020 SCMR 178; Iqbal alias Bhala and 2 others v. The

State 1994 SCMR 1; Arshad Beg v. The State 2017 SCMR 1727 and Muhammad Akram v. The State 2009 SCMR 230 ref.

Muhammad Akram v. The State 2009 SCMR 230 rel.

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

----Ss. 302, 337-H(2), 114, 148 & 149---Qatl-i-amd, rash or negligent act to endanger human life or personal safety of others, abettor present at the time of crime, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Acquittal of co-accused on the same set of facts---Role of accused distinct from the acquitted co-accused---Accused were charged for committing murder of the brother of the complainant by firing---Perusal of FIR clearly showed that the complainant had stated that acquitted co-accused was unarmed and the only accusation against him was that he instigated the other co-accused to kill the deceased---Trial Court had also dilated on that point and had stated that acquitted co-accused was about 65 years of age at the time of incident and keeping in view his health condition, the trial Court observed that it was hardly possible that he would come to the place of occurrence just to instigate co-accused for committing the offence---When a party of about six persons was coming with a common intention to kill a person, it made no sense that although each member of the party was duly armed with some type of weapons, but one of them was empty-handed---Complainant himself stated that while the other five members of the accused party were fully armed with firearm weapons, the acquitted co-accused was unarmed---Apart from that, the complainant had also given specific role to the accused that he fired at deceased, which hit him in his head and the bullet went through and through---However, no such overt role had been attributed to acquitted co-accused---Thus, it could not be said that on the same set of facts one accused had been acquitted while the other had been convicted and sentenced---It had been proved by prosecution witnesses and medical as well as circumstantial evidence that accused fired the fatal shot, which killed the deceased, but there was nothing against the acquitted co-accused---Hence, it could not be said that the case of the two was identical---Acquittal of co-accused would be of no help to the present accused, as the role assigned to the two was entirely different--- Circumstances established that the prosecution had proved of its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

(c) Criminal trial---

----Acquittal on same set of facts---Scope---On the same set of facts one accused can not be convicted when the other accused is acquitted.

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

----Ss. 302, 337-H(2), 114, 148 & 149---Qatl-i-amd, rash or negligent act to endanger human life or personal safety of others, abettor present at the time of crime, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Related and interested witnesses--- Inconsequential--- Accused were charged for committing murder of the brother of the complainant by firing---Allegedly, the eye-witnesses were near relatives of the deceased but they had sufficiently explained the date, time and place of occurrence as well as each and every event of the occurrence---Where the witnesses fell within the category of natural witnesses and narrated the details of the incident in a confidence-inspiring manner, then only escape available to the accused was to satisfactorily establish that witnesses were not the truthful witnesses but interested ones--- Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

(e) Criminal trial---

----Witness---Interested witness testimony of---Reliance---Interested witness is not one who is relative or friend of the deceased, but is one who has a motive to falsely implicate the accused.

Lal Khan v. State 2006 SCMR 1846 rel.

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

----Ss. 302, 337-H(2), 114, 148 & 149---Qatl-i-amd, rash or negligent act to endanger human life or personal safety of others, abettor present at the time of crime, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Ocular account supported by medical evidence--- Accused were charged for committing murder of the brother of the complainant by firing---Prosecution case mainly rested on the ocular testimony of eye-witness, who was complainant of the case and another eye-witness---Complainant had stated in his evidence that when they were getting fuel at a petrol pump the accused arrived there and fired at deceased, which hit him on his right side of temple and the bullet exited from his forehead---Complainant stated that accused also fired at the deceased, which hit his right side of lower leg---Same version of the incident was given by another eye-witness---There was no contradiction between the versions of two eye-witnesses of the incident---Both the prosecution witnesses deposed on the same line and their evidence could not be shattered while they were subjected to cross-examination---Ocular evidence of the two eye-witnesses was fully supported by the evidence of the Medico-Legal Officer---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Shafqat Ali and others v. The State PLD 2005 SC 288 rel.

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

----Ss. 302, 337-H(ii), 114, 148 & 149---Qatl-i-amd, rash or negligent act to endanger human life or personal safety of others, abettor present at the time of crime, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Day light occurrence---No question of mistaken identity---Accused were charged for committing murder of the brother of the complainant by firing---Alleged incident took place at about 8.30 a.m. in the month of August so there was ample light and the accused was also known to the complainant party, therefore, no question of mistaken identity of the accused had arisen---Moreover, it was also not possible that the complainant party would nominate innocent persons for the murder of their relative and would allow the real culprit(s) to go scot-free when there was no doubt that deceased died unnatural death as proved by the medical evidence, which had gone unchallenged---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Dadullah and another v. The State 2015 SCMR 856 rel.

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

----Ss. 302, 337-H(ii), 114, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, rash or negligent act to endanger human life or personal safety of others, abettor present at the time of crime, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Withholding material evidence---Accused were charged for committing murder of the brother of the complainant by firing---As far as the objection raised by the defence with regard to given-up witnesses, it is true that withholding of important evidence led to an adverse inference against the prosecution keeping in view Art. 129(g) of Qanun-e-Shahadat, 1984---However, such suggestion was not helpful to the accused, as the prosecution had brought concrete material to prove its charge against the accused and nothing adverse had been proved to discard the evidence produced by the prosecution---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 302, 337-H(ii), 114, 148 & 149---Qatl-i-amd, rash or negligent act to endanger human life or personal safety of others, abettor present at the time of crime, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Presence of eye-witness at the spot justified---Accused were charged for committing murder of the brother of the complainant by firing---Defence objected that eye-witness was resident of a place, which was some 40 kilometers away from the place of incident, hence his presence at the spot was doubtful---Validity---Since the said witness was admittedly cousin of the complainant and the deceased, therefore, he could not be termed as chance witness, as a cousin could always visit his family members living even at a distance---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

(j) Criminal trial---

----Absconsion--- Scope--- Fugitive from law loses some of the normal rights granted by the procedural and substantive law and noticeable abscondence disentitles the absconder from the concession of bail notwithstanding merits of the case---If a person absconds from law and remains a fugitive then a negative inference can be made against him, unless his abscondence is explained.

Awal Khan and others v. The State PLD 1985 SC 402 and Raza Khan v. State 2013 MLD 810 rel.

Ghulam Rasool Narejo for Appellant.

Ali Anwar Kandhro, Additional Prosecutor General, Sindh for the State.

Nemo for the Complainant.

2023 Y L R 2310

[Sindh (Larkana Bench)]

Before Shamsuddin Abbasi and Amjad Ali Sahito, JJ

MUHAMMAD AALAM BROHI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-38 of 2018, decided on 8th November, 2022.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Prosecution case was that 45 kilograms charas was recovered from the possession of the accused---Record showed that on spy pointation, accused was apprehended by complainant when he was sitting over a white colour sack---Complainant asked the people available at the place of the incident to join the arrest and recovery proceedings but they refused to act as mashir due to fear for their lives at the hands of drug sellers---Finally, in the presence of mashir Head Constable and a Police Constable, the arrest and recovery proceedings started---On search, the sack carried by accused was found containing charas in foil pack packets in shape of slabs which on weighing came out to be 45 kilograms, out of which 10/10 grams from each slabs were segregated as samples while the remaining was also sealed separately---Accused was thereafter arrested under memo of arrest and recovery was prepared in presence of mashirs---Complainant produced arrival and departure entries which showed the movement of the ANF Officials---Complainant had also produced all certain relevant documents pertaining to the case, as such, the accused having prior knowledge had been found responsible for selling huge quantity of charas to the customer in a sack carried by him---Circumstances established that the prosecution had proved its case against the accused beyond the shadow of any reasonable doubt---Appeal against conviction was dismissed, in circumstances.

2011 YLR 2261 and 2021 SCMR 363 ref.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Safe custody and safe transmission of charas to the Office of Chemical Examiner established---Prosecution case was that 45 kilograms charas was recovered from the possession of the accused---Defence objected that the prosecution had failed to prove safe custody and safe transmission of Charas to the office of Chemical Examiner---Record showed that in the cross-examination of witnesses, no such question had been put by the defence that there was tampering with the case property at Police Station or during its transmission to the Chemical Laboratory---Charas was recovered from the present accused on 24.09.2014 and it was dispatched through Head Constable/mashir of recovery to the Chemical Laboratory on 25.09.2014---Said witness produced the report of Chemical Examiner---Inspector/SHO handed over the said parcel to mashir/Head Constable who deposited the same in the office of the Chemical Examiner and the report confirmed that the parcel was received on 25.09.2014 from the said mashir, therefore, it could safely be said that the safe chain of custody of the recovered narcotics was not compromised at all---Circumstances established that the prosecution had proved its case against the accused beyond the shadow of any reasonable doubt---Appeal against conviction was dismissed, in circumstances.

Faisal Shahzad v. The State 2022 SCMR 905 and Ajab Khan v. The State 2022 SCMR 317 rel.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotics---Appreciation of evidence---Prosecution case was that 45 kilograms charas was recovered from the possession of the accused----Defence had alleged that no private witness was associated at the time of recovery, which was violation of provisions of S. 103, Cr.P.C.---Validity---Section 25 of Control of Narcotic Substances Act, 1997, had excluded the applicability of S. 103, Cr.P.C., in narcotics cases---Applicability of S. 103, Cr.P.C., in the narcotic cases had been excluded and the non-inclusion of any private witness was not a serious defect to vitiate conviction---Complainant in his examination-in-chief had admitted that he asked people available at spot to join the arrest and recovery proceedings but they had refused to do so due to fear for their lives at the hands of drug sellers---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly, in circumstances.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Police witnesses, testimony of---Prosecution case was that 45 kilograms charas was recovered from the possession of the accused---So far as the evidence of ANF Officials was concerned, they were competent and their evidence could not be brushed aside merely on the pretext that they were ANF Officials---Said witnesses had furnished straight-forward and confidence-inspiring evidence and nothing had come on record to show that they had deposed against the accused maliciously or out of any animus and it could not be believed that the ANF Officials would plant or foist such a huge quantity (45 K.Gs) of narcotics substance against present accused with their own resources---Statement of official witness could not be discarded merely for the reason that they were ANF/Police Officials---Circumstances established that the prosecution had proved its case against the accused beyond the shadow of any reasonable doubt---Appeal against conviction was dismissed, in circumstances.

Zaffar v. The State 2008 SCMR 1254 rel.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Non-issuance of search warrant---Not consequential---Prosecution case was that 45 kilograms charas was recovered from the possession of the accused---Control of Narcotic Substance Act, 1997 as a special law was enacted mainly to curb the menace of narcotics in the country---Requirement to obtain a search warrant could be dispensed with in a case where a quick action was required to be taken and it would be difficult to obtain a search warrant; where due to paucity of time there was apprehension of narcotics being removed or culprits having the chance to escape from the place of incident---Law only required that an officer not below the rank of Sub-Inspector shall enter into a building, place premises or conveyance---In the present case, Inspector/SHO while patrolling on receipt of spy information arrived at the pointed place and recovered 45 kilograms of Charas from the sack carried by the present accused---Circumstances established that the prosecution had proved its case against the accused beyond the shadow of any reasonable doubt---Appeal against conviction was dismissed, in circumstances.

Zafar v. The State 2008 SCMR 1254 rel.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Complainant acting as Investigating Officer---Legality---Prosecution case was that 45 kilograms charas was recovered from the possession of the accused---Defence objection that the complainant himself had acted as Investigating Officer in the present case and all the witnesses were ANF Officials, was of no help to him, as there was no bar in the law for a complainant not to act as Investigating Officer of the case---In the present case, no proof of enmity or ill-will with the complainant or the other witnesses had been brought on the record, thus, in the absence thereof, the competence of prosecution witnesses being ANF Officials was rightly believed by trial Court---Moreover, a procedural formality could not be insisted at the cost of completion of an offence---If an accused was otherwise found connected then mere procedural omission and even allegation of improper conduct of investigation would not help the accused---Even otherwise, mere status of one as an official would not alone prejudice the competence of such witness until and unless he was proved to be interested, who had a motive to falsely implicate an accused or had previous enmity with the person involved---By the flux of time in the case of transportation or possession of narcotics, technicalities of procedural nature or otherwise should be overlooked in the larger interest of the country if the case stands otherwise proved---Approach of the Court should be dynamic and pragmatic, in approaching true facts of the case and drawing correct and rational inference and conclusions while deciding such type of cases---Circumstances established that the prosecution had proved its case against the accused beyond the shadow of any reasonable doubt---Appeal against conviction was dismissed, in circum-stances.

The State v. Zaffar 2008 SCMR 1254; State/ANF v. Muhammad Arshad 2017 SCMR 283; Farooq v. The State 2008 SCMR 970; Ghulam Qadir v. The State PLD 2006 SC 61 and Salah-ud-Din v. The State 2010 SCMR 1962 rel.

Muhammad Shabir Rajput for Appellant.

Mohsin Ali Pathan, Special Prosecutor A.N.F. Sukkur for the State.

2023 Y L R 2343

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ali Sangi, J

MUHAMMAD QASIM and 5 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. S-162 of 2019, decided on 20th September, 2021.

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

----Ss. 302(b), 324, 337-A(i), 337-F(vi), 504, 114, 147, 148 & 149---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, attempt to commit qatl-i-amd, Shajjah-i-khafifah, ghayr-jaifah-munaqqillah, intentional insult with intent to provoke breach of peace, abettor present when offence was committed, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Defence plea---Accused were charged for assaulting the complainant party, due to which the brother and brother-in-law of the complainant died, whereas complainant and his nephew sustained injuries---Record showed that during cross-examination of the witnesses, initially the accused persons took defence that the people of "HR" group attacked upon complainant party and then they approached Mr. "M" for exoneration, subsequently Mr. "M" asked them to lodge case against the accused persons---Moreover, it was suggested that complainant party was kamdar of Mr. "M"---Accused persons took another defence that it was a road accident and they had not committed any offence and then two Court Witnesses were examined before the Trial Court---Neither the Court Witnesses were eye-witness of the incident nor did they produce referral of the doctor or any police later which might show that it was a road accident---It was only stated by the court witnesses that they were informed by the attendant of the patient that due to road accident injured received the injuries---No doubt accused could take several defences during the trial but the same were subject to some legal weight---Benefit of weakness of defence could not be given to the prosecution in presence of established principle of law that the prosecution was duty bound to prove the case beyond reasonable doubt---None of the defence version was brought by the accused persons before the Investigation Officer during the investigation of the case---Circumstances established that the prosecution had proved its case against the accused persons beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Zafar v. The State and others 2018 SCMR 326; Muhammad Asif v. The State 2017 SCMR 486; Muhammad Nawaz v. The State 2016 PCr.LJ Note 72; Muhammad Javed and another v. The State and another 2019 YLR Note 1; Rahat Ali v. The State 2010 SCMR 584; Muhammaddullah and another v. The State through Additional Advocate General and another 2018 PCr.LJ 1633; Allah Bakhsh v. Station House Officer and another 2013 MLD 885; Muhammad Ishaque and another v. The State 1997 SCMR 596; Aurangzeb v. The State through Advocate General 2008 PSC (Crl.) 965; Haroon Shafique v. The State and others 2018 SCMR 2118; Said Wahab v. The State through Additional Advocate General and 3 others 2018 YLR 2398; Bagh Ali v. Muhammad Anwar and another 1983 SCMR 1292; Saeedullah Khan v. The State 1986 SCMR 1027; Mir Muhammad v. The State 1995 SCMR 610; Sikandar v. The State PLD 2004 Kar. 644; Imran Ashraf and 7 others v. The State 2001 SCMR 424; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103; Muhammad Ilyas v. The State 1997 SCMR 25; Wali Muhammad v. Nawab and others 1984 SCMR 914; Riaz Masih alias Mithoo v. The State 1995 SCMR 1730; Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Mehar Ali and others v. The State 1968 SCMR 161; Khurshed v. The State PLD 1996 SC 305; Muhammad Iqbal and others v. Muhammad Akram and another 1996 SCMR 908; Muhammad Ahmad and another v. The State and others 1997 SCMR 89; Khan Muhammad Mahar v. The State 2003 SCMR 22; Khalid Mehmood Butt v. Rauf Ahmed Qureshi 2008 SCMR 660; Peer Mukaram-ul-Haq v. National Accountability Bureau (NAB) through Chairman and others 2006 SCMR 1225; Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607; Mazhar Ahmed v. The State and another 2012 SCMR 997; Abdul Hameed v. Muhammad Abdullah and others 1999 SCMR 2589; Alamgir Khalid Chughtai v. The State PLD 2009 Lah. 254; Muhammad Shahid Sahil v. The State and another PLD 2010 FSC 215; Saifal v. The State 2013 PCr.LJ 1082; Ammar Yasir Ali v. The State 2013 PCr.LJ 783; Muhammad Rizwan Ahmed and others v. The State 2016 PCr.LJ 1371; Babar Ahmad v. The State 2017 YLR 153; Shoaib Ahmed and others v. The State and others 2019 PCr.LJ 57; Ulfat Hussain v. The State 2018 SCMR 313; Muhammad Nadeem alias Deemi v. The. State 2011 SCMR 872; Nadir Shah v. The State 2009 SCMR 565; Naseer Ahmed v. The State 2003 SCMR 350; Muhammad Mushtaque v. The State PLD 2001 SC 107; Khadim Hussain v. The State PLD 2010 SC 669; Khurshid Ahmad v. Kabool Ahmed and others PLD 1964 (W.P.) Karachi 356; Asif Jameel and others v. The State 2003 MLD 676; Shawar Gul and others v. The State and another 2006 P.Cr.L.J 284; Saeed and 2 others v. The State 2003 SCMR 747; Muhammad Ahmed (Mahmood Ahmed) and anther v. The State 2010 SCMR 660; Farmanullah v. Qadeem Khan and another 2001 SCMR 1474; Achar alias Bhai Khan and another v. The State 2003 PCr.LJ 232; Nawab Khan alias Dahkhan and others v. The State and others 2015 PCr.LJ 539; Muhammad Bashir v. Station House Officer Okara Cantt and others PLD 2007 SC 539; Muhammad Ashraf Khan Tareen and another v. The State and another 1996 SCMR 1747; Aftab Ahmed v. Hassan Arshad and 10 others PLD 1987 SC 13; Shahnawaz and others v. The State PLD 1959 (W.P.) Karachi 383; Abdullah Khan (deceased) through his legal representative v. Government of Sindh and another 1986 MLD 1500; Muhammad Ashraf v. Shah Noor Khan and another 1996 MLD 1819; Mst. Maryam Mirza v. M. M. Kazi and 2 others 1988 MLD 1651 and Muhammad Pervez and others v. The State and others 2007 SCMR 670 ref.

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

----Ss. 302(b), 324, 337-A(i), 337-F(vi), 504, 114, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-munaqqillah, intentional insult with intent to provoke breach of peace, abettor present when offence was committed, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Related and interested witnesses---Reliance---Accused were charged for assaulting the complainant party, due to which the brother and brother-in-law of the complainant died, whereas complainant and his nephew sustained injuries---Defence objected to the relationship of the witnesses with the deceased and pleaded that the witnesses were near relatives of the deceased and were interested therefore their evidence could not be relied upon---Validity---Such contention had no force as in the instant matter, the eye-witnesses had sufficiently explained the date, time and place of occurrence, as well as each and every event of the occurrence---Parties were known to each and it was a day time incident, so there was no chance of mistaken identity of the accused persons---Particularly, the witnesses themselves received the injuries at the hands of the accused persons and the medical evidence in that respect was supportive---Mere fact that a witness was closely related to the accused or deceased or he was not related to either party was not a sole criteria to judge his independence or to accept or reject his testimony rather the true test was whether the evidence of a witness was probable and consistent with the circumstances of the case or not---Circumstances established that the prosecution had proved its case against the accused persons beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Lal Khan v. State 2006 SCMR 1846; Zulfiqar Ahmed and another v. State 2011 SCMR 492; Iqbal alias Bala v. The State 1994 SCMR 1 and Zahoor Ahmed v. The State 2007 SCMR 1519 rel.

(c) Criminal trial---

----Sole evidence of material witness---Scope---Sole evidence of material witness is always sufficient to establish the guilt of accused, if the same is confidence inspiring and trustworthy supported with other independent source of evidence because law requires quality of evidence and not quantity to prove the charge.

Namoos Khan and another v. The State 2017 PCr.LJ 34; Behram v. The State 2015 YLR 150 and Niaz-ud-Din and another v. The State 2011 SCMR 725 rel.

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

----Ss. 302(b), 324, 337-A(i), 337-F(vi), 504, 114, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr - jaifah - munaqqillah, intentional insult with intent to provoke breach of peace, abettor present when offence was committed, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Delay of thirty nine hours in lodging the FIR plausibly exaplained---Accused were charged for assaulting the complainant party, due to which the brother and brother-in-law of the complainant died, whereas complainant and his nephew sustained injuries---Record showed that the FIR was delayed by 39 hours and no explanation was furnished by the complainant party---Complainant in his examination-in-chief had deposed that he arranged the vehicle and shifted the injured persons to poliçe station wherefrom injured were referred to a hospital for treatment, and them again they were referred to Civil Hospital and on the second day his brother-in-law died---After the formalities at hospital complainant along with the witnesses approached police station where ASI was present, who told them that WHC was not available and he would come after one hour and on his arrival FIR was registered---Complainant was himself injured and was busy in the treatment, thus, his first priority would be to save the lives of the injured persons instead of lodging the FIR---In view thereof, the delay if any was explained and was not fatal to the prosecution under the said facts and circumstances of the present case---Circumstances established that the prosecution had proved its case against the accused persons beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872 rel.

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

----Ss. 302(b), 324, 337-A(i), 337-F(vi), 504, 114, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-munaqqillah, intentional insult with intent to provoke breach of peace, abettor present when offence was committed, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Minor contradictions in the statements of witnesses---Not consequential---Accused were charged for assaulting the complainant party, due to which the brother and brother-in-law of the complainant died, whereas complainant and his nephew sustained injuries---Prosecution examined two eye-witnesses, who fully supported the case of prosecution on each and every aspect---Said witnesses were cross-examined but no major contradiction was found in their evidence---Defence pointed out some minor contradictions and discrepancies in the evidence of witnesses, which were due to the passage of time and the same occurred in each and every case and were not sufficient to hold that the case of prosecution was doubtful---Circumstances established that the prosecution had proved its case against the accused persons beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Zakir Khan v. The State 1995 SCMR 1793 rel.

Mahmood Alam Rizvi and Waqar Ahmed Memon for Appellants.

Mehmood Alam Abbasi for the Complainant.

Ms. Sana Memon, A.P.G. for the State.

2023 Y L R 2369

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

MUHAMMAD ARIF---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 413 of 2021, decided on 30th May, 2022.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Accused was found in possession of ten packet of opium weighing 9800 grams and four packets of charas weighing 5000 grams---According to the prosecution, accused had a black bag in his hand, however the said bag found no further description either in the memo of arrest and recovery, or in the FIR---Further description of the same however came forth in the deposition of complainant who, while being cross-examined, admitted that the bag was in fact of navy blue colour and had "Old is Gold" inscribed on it---As per the prosecution case, the bag contained 10 packets of opium which were weighed and found to be 9.8 kilograms while 4 packets of charas were also found within the bag which were weighed and found to be 5 kilograms---Said packets did not find any description as to the nature or content of the outer coverage of the same; whether they were wrapped in plastic, paper or cloth---Such omissions struck at the core of the prosecution case as the same would have otherwise helped establish that the case property available in Court was in fact the same---Departure entry through which the complainant had left along with his subordinates to patrol also found no mention in the FIR, in the memo of arrest and recovery, in the memo of site inspection and not even in the 161, Cr.P.C. statement of the witness---Complainant and recovery witness had signed over the sealed parcels, however the same signatures were missing as was admitted by recovery witness during his deposition---Circumstances established that the prosecution had failed to prove the charge against the accused beyond reasonable shadow of doubt---Appeal against conviction was allowed accordingly.

Mujeeb-ur-Rehman v. The State 2022 PCr.LJ Note 20; Sameer v. The State 2018 PCr.LJ Note 128; Samano Kanrani v. The State 2020 MLD 486; Arshad Mahmood Khan v. The State 2017 PCr.LJ 668; Mst. Sakina Ramzan v. The State 2021 SCMR 451; Muhammad Imran v. The State 2011 SCMR 1954; Muhammad Shahruh and others v. The State 2021 PCr.LJ 1826; Tariq Mehmood v. The State PLD 2009 SC 39; Salah-ud-Din v. The State 2010 SCMR 962; The State/ANF v. Muhammad Arshad 2017 SCMR 283; Mushtaq Ahmed v. The State and another 2020 SCMR 474 and Sarfaraz Ahmed v. The State 2021 MLD 599 ref.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Safe custody of narcotics---Non-production of incharge malkhana---Contradictory statements--- Effect---Accused was found in possession of ten packet of opium weighing 9800 grams and four packets of charas weighing 5000 grams---Whole case property was sealed on the spot and brought back to the police station where, as per the deposition of complainant police official, he kept the case property in safe custody---Complainant then admitted that such entries for recovered case properties were kept in the relevant Register and that he recorded the same, but did not produce it before the Court---Contradicting the complainant, however, Investigating Officer deposed that he received case property for investigation---Investigating Officer also deposed that he did not make an entry of case property in the Register nor did he confirm from the Head Mohrar regarding keeping the entry in Register---Investigating Officer too admitted to not producing the entry from the Register---As per his deposition, Investigating Officer received the case property whereas the complainant of the case deposed that he had kept the same in safe custody---Both the said prosecution witnesses had contradicted each other on a crucial aspect of the case and due to their failure by not producing the entry from the Register nor examining the in-charge of said malkhana/Head Muharar, it could not be ascertained whether case property was even kept safe during the intervening period in which it was not sent to the Chemical Examiner---Safe custody from recovery to dispatch to the Chemical Examiner could not be proven especially when the same was delayed by two whole days without the possibility of tampering---In failing to disprove the possibility of tampering and establishing safe custody, recovery of the narcotics could not be used against the accused despite there being a positive Chemical Examiner's report---Circumstances established that the prosecution had failed to prove the charge against the accused beyond reasonable shadow of doubt---Appeal against conviction was allowed accordingly.

Mst. Sakina Ramzan v. The State 2021 SCMR 451 rel.

(c) Criminal trial---

----Benefit of doubt---Principle---If there was a single infirmity in the prosecution case creating sufficient doubt, the benefit of the same will go to the accused.

Faizan Ali v. The State 2019 SCMR 1649; Kamran Shah v. The State 2019 SCMR 1217 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

Gul Muhammad Farooqui for Appellant.

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

2023 Y L R 2395

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto, J

ARBAB ALI SHAR---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.S-315 of 2019, decided on 14th November, 2022.

(a) Criminal trial---

----Police witnesses, testimony of---Evidence of Police Officials can not be discarded for the simple reason simply that they belonged to police force---Police Officer is as good witness as any other person---Standard of judging evidence of Police Officials is same on which evidence of any other witness is judged.

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

----Ss. 302(b), 311, 147, 148 & 149---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Presence of police witnesses doubtful---Accused was charged that he along with his co-accused committed murder of his wife and her alleged paramour by inflicting dagger blows---Prosecution case was that accused committed murder of male deceased by means of dagger and wife of the accused was done to death by means of dagger by acquitted accused---Accused were identified by Police Constable and after commission of murders, they ran away---Trial Court failed to appreciate the evidence of Police Officials on the basis of sound judicial principles for the reasons that prosecution story was unnatural and unbelievable and it was against conduct of a criminal to commit any offence in presence of Police Officials---Presence of Police Officials at the time of incident was highly doubtful as the question was to why efforts were not made by the Police Officials to rescue deceased persons---It did not appeal to a prudent mind that accused persons, after commission of the murders, ran away in presence of police when police party was armed with official sophisticated weapons---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 311, 147, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Withholding material evidence---Accused was charged that he along with his co-accused committed murder of his wife and her alleged paramour by inflicting dagger blows---According to the case of prosecution, accused and others were identified by Police Constable at the time of incident but at the trial he was given up by the prosecution---No explanation on the part of prosecution was given that as to why the evidence of the said witness was withheld, therefore, a presumption under Illustration (g) of Art. 129 of Qanun-e-Shahadat, 1984, could fairly be drawn that had the said witness been examined in the Court his evidence would have been un-favourable to the prosecution---Although, the prosecution was not bound to produce each and every witness but if the prosecution failed to produce such witnesses who were central figure and the entire story revolved around them, then the prosecution story would become doubtful---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 311, 147, 148 & 149---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Co-accused acquitted on same set of evidence---Effect---Accused was charged that he along with his co-accused committed murder of his wife and her alleged paramour by inflicting dagger blows---According to prosecution evidence, role assigned to the acquitted co-accused was that he committed murder of wife of present accused in presence of Police Officials---Acquitted co-accused had been acquitted on the ground that prosecution case was doubtful against him---It was quite strange that on the-same set of evidence, present accused had been convicted without independent corroboration as present accused and acquitted co-accused had similar role in the commission of the offence---Trial Court found evidence doubtful to the extent of acquitted co-accused but convicted the present accused on same set of evidence meaning thereby that witnesses of ocular account/Police Officials had been disbelieved by the trial Court to the extent of acquitted co-accused, hence present accused could not be convicted on same set of evidence in absence of any corroboratory piece of evidence, which was totally missing in the present case---Appeal against conviction was allowed, in circumstances.

Saifullah v. The State 1992 MLD 984 ref.

Pervaiz Khan and another v. The State 2022 SCMR 393 rel.

(e) Administration of justice---

----Prime duty of the Court is to do justice according to its own conscious.

Saifullah v. The State 1992 MLD 984 rel.

Nawab Siraj Ali and Nawab Sajjad Ali, Ghulam Murtaza and Shahrukh Jatoi v. The State through Advocate General, Sindh 2023 SCMR 16 rel.

(f) Criminal trial---

----Benefit of doubt---Principle---Single circumstance, which created reasonable doubt in prosecution case, will be sufficient to extend the benefit of doubt, to the accused.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Amanullah G. Malik for Appellant.

Syed Sardar Ali Shah, Additional Prosecutor General for the State.

2023 Y L R 2432

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi, J

AIJAZ KATOHAR and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeals Nos. S-32, S-33, S-34 of 2019, decided on 30th January, 2023.

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

----Ss. 302(b), 324, 452, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, house trespass, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Ocular account, reliance upon---Accused were charged for committing murderous assault on complainant party, due to which, the sister and niece of the complainant were hit and his sister died---Ocular account of the incident had been furnished by two eye-witnesses including complainant---Complainant supporting the averments of FIR narrated the facts---Similar disclosure had been made by other eye-witness in his evidence further adding that his statement was recorded by the police---Both the said witnesses identified the accused and the case property present in Court to be same---Both these eye-witnesses were cross-examined by defence at length but nothing favorable to the present accused came out from their mouth---Evidence of the said witnesses was found reliable, trustworthy and confidence-inspiring in nature---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt by producing reliable, trustworthy and confidence-inspiring evidence---Appeal against conviction was accordingly dismissed.

(b) Criminal trial---

----Witness---Testimony of sole witness---Scope---Sole evidence of a material witness i.e. an eye-witness is always sufficient to establish the guilt of the accused if the same is confidence-inspiring and trustworthy and supported by other independent source of evidence because the law considered the quality of evidence and not its quantity to prove the charge---However, the accused can be convicted if the Court finds the direct oral evidence of one eye-witness to be reliable, trustworthy and confidence-inspiring.

Muhammad Ehsan v. The State 2006 SCMR 1857; Niaz-Ud-Din v. The State 2011 SCMR 725 and Allah Bakhsh v. Shammi and others PLD 1980 SC 225 rel.

(c) Criminal trial---

----Direct evidence---Scope---Direct evidence is always material to decide the charge---Failure of direct evidence is always sufficient to hold a criminal charge as "not proved" but where the direct evidence holds the field and stands the test of it being natural and confidence-inspiring then the requirement of independent corroboration is 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.

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

----Ss. 302(b), 324, 452, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, house trespass, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Circumstantial evidence---Accused were charged for committing murderous assault on complainant party, due to which, the sister and niece of the complainant were hit and his sister died---Duty Officer examined by the prosecution deposed that on arrival and disclosure of facts of cognizable offence by the complainant, he recorded his FIR and then inspected dead body of deceased and injuries on the injured, recovered blood stained pieces of quilt, bed sheet and four empties of .12 bore from the venue of occurrence and also took custody of both accused and guns from the complainant party together with recovery of four live cartridges of 12 bore from each accused and then prepared certain documents/mashirnamas in presence of mashirs---Said witness also recorded S. 161, Cr.P.C. statements of the witnesses---On return to police station, said witness also registered separate FIRs against the accused under Sindh Arms Act, 2013---Further, said witness dispatched the recovered weapons to concerned Ballistic Expert who on its examination reported that the empties sent to the Laboratory on examination were fired from the guns which were secured from possession of present accused while the blood stained pieces of quilt and bed sheet on chemical analysis by Chemical Laboratory were found to have been stained with human blood---Said witness identified both the present accused and case property present in Court to be same---Like disclosure had been endorsed by mashir in his evidence which in all was supportive of the ocular account furnished by the complainant party---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt by producing reliable, trustworthy and confidence-inspiring evidence---Appeal against conviction was accordingly dismissed.

(e) Criminal trial---

----Medical evidence---Scope---Medical evidence itself does not throw any light over identity of the offender---Such evidence confirms the available substantive evidence concerning certain facts including the seat of injury, nature of injury, cause of death, kind of weapon used in the occurrence, duration between injuries and death and presence of an injured witness or the injured accused at place of occurrence but it reflects no connectivity of accused with commission of the offence---Medical evidence can not constitute corroboration for proving involvement of accused persons in commission of the offence, as it does not establish identity of the accused.

Yaqoob Shah v. State PLD 1976 SC 53; Machia v. State PLD 1976 SC 695; Muhammad Iqbal v. Abid Hussain 1994 SCMR 1928; Mehmood Ahmad v. State 1995 SCMR 127; Muhammad Sharif v. State 1997 SCMR 866; Dildar Hussain v. Muhammad Afzaal PLD 2004 SC 663; Iftikhar Hussain v. State 2004 SCMR 1185; Sikandar v. State 2006 SCMR 1786; Ghulam Murtaza v. Muhammad Akram 2007 SCMR 1549; Altaf Hussain v. Fakhar Hussain 2008 SCMR 1103 and Hashim Qasim v. State 2017 SCMR 986 rel.

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

----Ss. 302(b), 324, 452, 148 & 149---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, attempt to commit qatl-i-amd, house trespass, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence--- Statements of accused recorded under S. 342, Cr.P.C.---Scope---Accused were charged for committing murderous assault on complainant party, due to which, the sister and niece of the complainant were hit and his sister died---Evidence produced by the prosecution was put to the accused in their statements recorded in terms of S. 342, Cr.P.C., wherein both the accused also admitted the motive set forth by the prosecution that they were implicated in murder case on account of matrimonial dispute---All these factors prima-facie established a charge against the accused---Both the accused in their statements did not desire to examine themselves on oath, nor led any evidence in their defence in rebuttal of prosecution evidence, which fully proved the charge against them beyond shadow of a reasonable doubt---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt by producing reliable, trustworthy and confidence-inspiring evidence---Appeal against conviction was accordingly dismissed.

(g) Criminal trial---

----Motive--- Scope--- Matrimonial dispute---Motive is always a double-edged weapon---No doubt a dispute over matrimonial affairs could be a reason for an accused to commit the alleged crime but it could equally be a reason for the complainant side to falsely implicate him in the case on account of a previous grudge.

Altaf Hussain Surhayo for Appellants

Complainant in person.

Aitbar Ali Bhullo, D.P.G. for the State.

Date of hearing: 19th January, 2023.

JUDGMENET

ZULFIQAR ALI SANGI, J.---Through captioned criminal jail appeal, the appellants have assailed the judgment dated 18.04.2019, passed by learned 1st Additional Sessions Judge/MCTC, Jacobabad, in Sessions Case No.454/2013 (Re. State v. Aijaz Katohar and another), outcome of FIR bearing Crime No.19/ 2013, for offence punishable under sections 302, 324, 452, 148, 149, P.P.C. registered with Police Station, Dodapur, whereby they have been convicted for an offence punishable under section 302(b), P.P.C. and sentenced to suffer rigorous imprisonment for life as Tazir with fine/compensation of Rs.200,000/- each, to be paid to the legal heirs of deceased and in default whereof, to suffer simple imprisonment for one year more. They were also convicted for an offence punishable under section 337-F(v), P.P.C. to suffer R.I for five years each and to pay Daman of Rs.50,000/- each to injured baby Khalida and in case of non-payment of Daman, both the accused shall remain in jail till its payment. Both the sentences shall run concurrently, with benefit of Section 382-B, Cr.P.C.

1. Concise facts of prosecution case as unfolded in the FIR lodged by complainant Wahid Bux Dayo on 21.08.2013, at 0015 hours are that he resides with his brothers namely Fateh Muhammad, Muhammad Aslam, sister Mst. Khursheed including other inmates and house of his cousin Abdul Wahab is situated adjacent to his house. His sister Mst.Shabana was tied in knot with Aijaz Ali and out of said wedlock, she has a son namely Fayaz and daughters namely Arifa and Khalida, aged about 5/6 years. His brother-in-law Aijaz used to maltreat his sister on domestic issues with threats of murder to her and owing to such fear, about 7/8 months back, she along with her children left the house of her husband and came to his house and resided with him whereupon both the present appellants/ accused used to convey threats that why they have detained his wife in their house, therefore, they will see them. At night, the complainant and his brothers Fateh Muhammad and Muhammad Aslam after having night meals were sleeping on separate cots in front the courtyard of their house and besides him, his sister Mst.Khursheed and niece Khalida were sleeping while the electric bulbs were glowing. At night on 20.08.2013, at about 11.00 P.M, they heard noise of stoppage of motorcycles outside their house on which he and his brothers Fateh Muhammad and Muhammad Aslam woke up and their cousin Abdul Wahab also came there and they saw on bulb light three motorcycles of red colour parked outside their house whereupon accused namely Aijaz, Abdul Majeed, Qado alias Qadan were seated on one motorcycle while accused Abdullah, Ghulam Rasool and Deedar were on another motorcycle and on third motorcycle were accused Suhno, Jan Muhammad and Mangh alias Baboo, all by caste Katohars. Of them, accused Aijaz was armed with DBBL Gun, Abdullah with SBBL Gun, Abdul Majeed, Deedar, Qado alias Qadan had Kalashnikovs, accused Suhno and Jan Muhammad had rifles while accused Ghulam Rasool and Mangh alias Baboo had T.T. pistols in their hands, who were earlier known to the complainant party and they trespassed into the house of complainant. Meanwhile, accused Aijaz and Abdullah asked the complainant party that why Mst.Shabana had been retained by them, saying so, both the accused while raising their weapons fired at the complainant with intention to commit his murder but he fell down from his cot and such fires hit to his sister Mst. Khursheed and niece Khalida while other accused also gave hakals and issued threats to the complainant party. The complainant and his brother Muhammad Aslam caught hold of accused Aijaz while his brother Fateh Muhammad and cousin Abdul Wahab caught hold of accused Abdullah with their guns, on which the other accused intervened to rescue them. On fire shot reports and cries, the neighbourers and villagers came running and seeing them all the remaining accused escaped away on their motorcycles towards southern side Lal Shah link road. Thereafter, handing over the apprehended accused with their respective weapons under custody of witnesses, the complainant saw her sister Mst. Khursheed having sustained firearm injuries on abdomen and other parts of her body while her niece Khalida sustained firearm injury on her right thigh but her sister Mst.Khursheed died within their sight. Leaving the witnesses to safeguard dead body of deceased, injured and apprehended accused with their weapons, he came by foot at police station and lodged FIR against the accused, to the above effect.

2. On completion of usual investigation, the police submitted final report under section 173, Cr.P.C. against the accused. The formal charge was framed against present appellants/accused to which they pleaded not guilty and claimed trial.

3. To establish the accusation against appellants / accused, the prosecution examined in all seven witnesses i.e PW-01 Tapedar Muhammad Din, PW-02 Complainant Wahid Bux, PW-03 Eye-witness Fateh Muhammad, PW-04 Dr.Ghazala Khan, PW-05 Mashir Anwar Ali Dayo, PW-06 Corpse bearer PC Pir Muhammad and PW-07 author/ SIO ASI Abdul Khalique, who all produced certain relevant documents in support of their statements. Thereafter, the learned State Counsel closed the side of prosecution.

4. The present appellants/accused in their statements recorded in terms of Section 342, Cr.P.C., denied the allegations levelled against them by pleading their innocence. However, they neither examined themselves on oath in disproof of the charge nor led any evidence in their defence.

5. The learned trial Court on evaluation of the material brought on record and hearing counsel for the parties convicted and sentenced the present appellants / accused vide impugned judgment, as discussed above.

6. Per learned defence counsel, there is inconsistency in between the evidence of prosecution witnesses which has demolished veracity of their evidence; that the complainant and PWs being related inter-se are interested witnesses and their evidence having no credibility, cannot be relied upon without independent corroboration; that some of the witnesses have been given up by prosecution for no obvious reasons; that there is conflict in between the ocular and medical account; that the prosecution has failed to prove the motive; that the recovery of crime weapons is foisted against appellants/ accused at the behest of complainant party. Summing up his contentions, the learned defence counsel submitted that present appellants/accused have been arraigned in this case on account of matrimonial dispute which is discernible from narration given in the FIR itself. He lastly concluded that the case of prosecution is doubtful and the appellants/accused are entitled to their acquittal.

7. On the other hand, the complainant has expressed his full confidence over learned D.P.G for the State who contended that all the witnesses have fully supported the case of prosecution and no material contradiction has been noticed in their evidence; that an innocent lady has been done to death while a minor girl received injury at the hands of appellants/accused over the matter of domestic quarrel; that the ocular evidence is consistent with medical as well circumstantial account; that the chemical examiner's and FSL reports have fully supported the case of prosecution, in that situation, the learned trial Court has rightly convicted and sentenced the appellants in accordance with law by way of impugned judgment which requires no interference by this Court, hence, the appeal filed by them is liable to be dismissed.

8. Heard learned counsel for the parties and perused the material made available on record with their able assistance.

9. The careful re-appraisal of the evidence brought on record is entailing that the case of prosecution is hinged upon three counts i.e ocular, circumstantial and the medical account and to support its case, the prosecution examined in all seven witnesses. Of them, PW-02 Complainant Wahid Bux Dayo by supporting the averments of FIR deposed that on the day of incident i.e 20.08.2013, at about 11.00 P.M, while he along with his sister Mst. Khursheed and PWs Fateh Muhammad and Muhammad Aslam was available and were chit chatting, they heard noise of motorcycle near outer door of their house and found present appellants/accused with seven others came on three motorcycles duly armed with deadly weapons who trespassed into his house and of them present appellants/ accused while threatening fired gun shot at him but he by falling on earth escaped the shot which hit to Mst. Khursheed and Khalida. They then apprehended both present appellants/accused with their respective weapons at the spot while other accused made their escape good. He then found Mst.Khursheed dead on receipt of firearm injuries on her chest and then saw Mst.Khalida having received firearm injuries on her right thigh. Leaving the witnesses over there, he came at police station and got registered the FIR against the accused. He further added that after registration of FIR, the police inspected the place of occurrence, inspected dead body of deceased and the injuries of Mst.Khalida, secured blood stained piece of quilt, piece of cloth of Chaddar together with 04 empty cartridges of .12 bore from the place of incident and that injured Mst.Khalida was referred to Larkana hospital for treatment while the dead body of deceased after postmortem was handed over to him. The like disclosure has been made by PW-03 eye-witness Fateh Muhammad in his evidence further adding that his statement was recorded by the police. They both identified the accused and the case property present in Court to be same.

10. Both these eye-witnesses were cross-examined by learned defence counsel at length but nothing favorable to the present appellants/accused came out from their mouth. On re-assessment of their evidence, I find the same reliable, trustworthy and confidence-inspiring in nature. In the present case, two eye-witnesses have fully supported the case as has been discussed above. It is well settled principle of law that the sole evidence of a material witness i.e. an eye-witness is always sufficient to establish the guilt of the accused if the same is confidence-inspiring and trustworthy and supported by other independent source of evidence because the law considers the quality of evidence and not its quantity to prove the charge. However, the accused can be convicted if the Court finds the direct oral evidence of one eye-witness to be reliable, trustworthy and confidence-inspiring. In this respect, reliance is placed on the case of Muhammad Ehsan v. The State (2006 SCMR 1857). The Honourable Supreme Court in case of Niaz-Ud-Din v. The State (2011 SCMR 725) has also observed in respect for the ability of the Court to uphold a murder conviction even based on the evidence of one eye-witness provided that it was reliable and confidence-inspiring and was substantiated from the circumstances and other evidence, since it is the quality and not the quantity of evidence which is of importance. Further, the Honourable Supreme Court in case of Allah Bakhsh v. Shammi and others (PLD 1980 SC 225) has also held that "even in murder case conviction can be based on the testimony of a single witness, if the Court is satisfied that he is reliable."

11. There can be no denial to the legally established principle of law that it is always the direct evidence which is material to decide a fact (charge). The failure of direct evidence is always sufficient to hold a criminal charge as 'not proved' but where the direct evidence holds the field and stands the test of it being natural and confidence-inspiring then the requirement of independent corroboration is only a rule of abundant caution and not a mandatory rule to be applied invariably in each case. Reliance can safely be placed upon case of Muhammad Ehsan v. The State (2006 SCMR 1857), wherein the Honourable Supreme Court of Pakistan has held that;-

"5. It be noted that this Court has time and again held that the rule of corroboration is rule of abundant caution and not a mandatory rule to be applied invariably in each case rather this is settled principle that if the Court is satisfied about the truthfulness of direct evidence, the requirement of corroborative evidence would not be of much significance in that, as it may as in the present case eye-witness account which is unimpeach-able and confidence-inspiring character and is corroborated by medical evidence".

1. As to circumstantial evidence, duty officer PW-07 ASI Abdul Khalique examined by the prosecution deposed that on arrival and disclosure of facts of cognizable offence by the complainant, he recorded his FIR and then inspected dead body of deceased Mst.Khursheed and that of injuries of injured Mst. Khalida, recovered blood stained pieces of quilt, bed sheet and 04 empties of .12 bore from the venue of occurrence and also took custody of both present appellants/accused and guns from the complainant party together with recovery of four live cartridges of .12 bore from each accused and then prepared certain documents/ mashirnamas in presence of mashirs Anwar Ali and Abdul Wahab. He also recorded 161, Cr.P.C. statements of the PWs. On return to police station, he also registered separate FIRs against the accused under Sindh Arms Act. Further, he dispatched the recovered weapons to concerned Ballistic Expert who on its examination reported that the empties sent to the Laboratory on microscope examination were fired from the guns which were secured from possession of present appellants/accused while the blood stained pieces of quilt and bed sheet on chemical analysis by Chemical Laboratory Sukkur @ Rohri were found to have been stained with human blood vide such reports (Exhs.19/F and 19/G) respectively. He identified both the present appellants/ accused and case property present in Court to be same. The like disclosure has been endorsed by mashir Anwar Ali in his evidence which in all is supportive to the ocular account furnished by the complainant party.

2. The medical account is in the nature of supporting, confirmatory or explanatory of the direct or circumstantial evidence, and is not "corroborative evidence" in the sense the term is used in legal parlance for a piece of evidence that itself also has some probative force to connect the accused persons with commission of the offence. Medical evidence itself does not throw any light over identity of the offender. Such evidence confirms the available substantive evidence concerning certain facts including the seat of injury, nature of injury, cause of death, kind of weapon used in the occurrence, duration between injuries and death and presence of an injured witness or the injured accused at place of occurrence but it reflects no connectivity of accused with commission of the offence. It cannot constitute corroboration for proving involvement of accused persons in commission of the offence, as it does not establish identity of the accused. The reliance in this context is placed on cases of Yaqoob Shah v. State (PLD 1976 SC 53); Machia v. State (PLD 1976 SC 695); Muhammad Iqbal v. Abid Hussain (1994 SCMR 1928); Mehmood Ahmad v. State (1995 SCMR-127); Muhammad Sharif v. State (1997 SCMR 866); Dildar Hussain v. Muhammad Afzaal (PLD 2004 SC 663); Iftikhar Hussain v. State (2004 SCMR 1185); Sikandar v. State (2006 SCMR 1786); Ghulam Murtaza v. Muhammad Akram (2007 SCMR 1549); Altaf Hussain v. Fakhar Hussain (2008 SCMR 1103) and Hashim Qasim v. State (2017 SCMR 986). In the case in hand, from the oral account produced by above two eye-witnesses, it is established that the accused used guns for committing murder of deceased Mst. Khursheed and causing injury to injured Mst. Khalida which is further substantiated by arrest of present appellants/accused red-handed at the spot with recovery of crime weapons from them coupled with recovery of empties from the venue of occurrence, therefore, the ocular account in respect of incident and circumstantial account furnished by the prosecution has been supported by the medical evidence in shape of deposition of PW-04 WMO Dr. Ghazala Khan, who in her evidence deposed that she firstly examined injured Mst. Khalida and found a lacerated type of punctured wound measuring about 2 cm x 4 cm situated on right thigh x clinically fractured of right femur. Later-on, she examined dead body of deceased Mst.Khursheed and found the following injuries;

3. Three lacerated type of punctured wound measuring about 1 c.m situated at abdomen anteriorly above umbilicus with inverted margins (wound of entry).

4. Three lacerated type of punctured wound measuring about 1 c.m situated at abdomen anteriorly above umbilicus with everted margins (wound of exit).

5. One lacerated type of punctured wound, measuring about 1 c.m situated at abdomen below umbilicus with everted margins (wound of exit).

6. One lacerated type of punctured wound measuring 1 c.m situated on back at mid near vertebral column with inverted margins (wound of entry).

7. One lacerated type of punctured wound measuring 1.5 cm situated at right ring finger.

2023 Y L R 2449

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar and Omer Sial, JJ

WAPDA through Superintendent Engineer---Appellant

Versus

LAND ACQUISITION OFFICER and 2 others---Respondents

1st Appeals Nos. 20, 21 and 22 of 2012, decided on 6th April, 2022.

Land Acquisition Act (I of 1894)---

----Ss. 18 (3) [as amended by Sindh Land Acquisition (Amendment) Act (VIII of 1992)] & 54---Civil Procedure Code (V of 1908), O.XX, R.5---Acquisition of land---Filing of reference---Procedure---Issue-wise finding, non-giving of---Effect---Appellant/acquiring authority directly filed Reference before Referee Court which was dismissed, without giving issue-wise findings on all issues---Validity---Where Court can decide only one issue, if finding on such issue is sufficient to decide the suit then there is no need to discuss all other issues framed in the suit---Company or local authority could, by written application to the Collector, require that the matter be referred to by the Collector for determination of the Court---Appellant/ acquiring authorities could by written application to the Collector require the matter to be referred to by the Collector for determination of the Court on such written application and the Collector must refer the matter to the Court within 15 days---High Court directed Trial Court to decide the reference after recording evidence of all parties interested---High Court also directed to record evidence of respondents, and after framing issues, decide all issues as envisaged under the provision of O. XX, R. 5, C.P.C.---High Court directed Referee Court to examine Collector as witness who was author of the award and was an important witness---Appeal was allowed accordingly.

Land Acquisition Collector/Officer Pak-Arab Refinery Ltd. (PARCO), Shikarpuar and another v. Yaseen Khan and another PLD 2008 Kar. 297; 2009 SCMR 371; PLD 2007 SC 271; Land Acquisition Collector and 6 others v. Muhammad Nawaz and 6 others PLD 2010 SC 745; Fazal Karim and 3 others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad and others PLD 1998 SC (AJ&K) 26; Pir Khan through LRs's case PLD 1987 SC 485 and Muhammad Sarwar v. The State PLD 1969 SC 278 ref.

Muhammad Idrees Naqshbandi for Appellants.

Faisal Ali Raza Bhatti for Respondent No.2 (in 1st Appeal No.D-22 of 2012).

Muhammad Humayoon Khan, Deputy Attorney General for Pakistan and Ashfaque Nabi Qazi, Assistant Attorney General for Pakistan.

Allah Bachayo Soomro, Additional Advocate General, Sindh.

2023 Y L R 2499

[Sindh]

Before Aqeel Ahmad Abbasi and Abdul Mobeen Lakho, JJ

Mrs. SAMINA YAQUB through constituted attorney and 2 others---Appellants

Versus

JALIL AHMED KAPOOR and 5 others---Respondents

H.C.A. No. 176 of 2022 with C.M.As. Nos. 1590, 1591 and 1592 of 2022, decided on 30th May, 2022.

Succession Act (XXXIX of 1925)---

----S. 278---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Interim injunction, refusal of---Appellant/ plaintiff filed suit for administration claiming that suit properties were part of estate left behind by deceased father of parties---Application under O. XXXIX, Rr. 1 & 2, C.P.C. filed by appellant/ plaintiff was dismissed by Single Judge in Chambers of High Court---Validity---Injunctive relief sought by appellant/ plaintiff was in respect of properties, which were not in the name of deceased predecessor-in-interest of parties---On the face of record, properties in question could not be treated as part of the estate left behind by their deceased predecessor-in-interest to be further distributed among all legal heirs---Issuance of any interim injunction at present stage of proceedings had been rightly declined---There was no sufficient material produced by appellant/plaintiff to make out a prima-facie case for grant of any injunctive relief in subject suit, which prima-facie involved issue of limitation besides other legal impediments to the claim of Benami or to dispute the validity of gift and transfer of properties through registered documents---Intra Court Appeal was dismissed, in circumstances.

Farrukh Afzal Munif v. Muhammad Afzal Munif and 29 others PLD 2022 Sindh 34 rel.

Syed Irshadur Rahman for Appellants.

2023 Y L R 2530

[Sindh]

Before Aqeel Ahmed Abbasi and Abdul Mobeen Lakho, JJ

MOHAMMED IQBAL KHAMISANI through Attorney---Appellant

Versus

Messrs HOTEL METROPOLE (PVT.) LTD. and another---Respondents

High Court Appeal No. 166 of 2022, decided on 17th May, 2022.

Specific Relief Act (I of 1877)---

----Ss. 12, 42 & 54---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for specific performance of agreement, declaration and injunction---Rejecting of plaint---Principle---Time barred suit---Appellant/plaintiff was aggrieved of rejecting of his plaint on application of respondent/defendant-- Validity---It was duty of Court to examine as to whether the Court had jurisdiction to decide the suit and as to whether a suit filed before it was maintainable in law or not---If Court was of the opinion that the suit was not maintainable in law for any of the reasons as mentioned in O. VII, R. 11, C.P.C., it would reject the paint at the very initial stage of proceedings to avoid abuse of process of law---Division Bench of High Court declined to interfere in the impugned order as appellant/plaintiff failed to make out a prima facie case or to show any valid and lawful cause of action in the suit which otherwise was barred by law of limitation---Intra Court Appeal was dismissed, in circumstances.

Muhammad Kamran Baloch for Appellant.

2023 Y L R 2606

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

SHER ZAMAN through Jail Superintendent, Karachi---Appellant

Versus

The STATE---Respondent

Special Anti-Terrorism Jail Appeals Nos. 98 and 99 of 2021, decided on 7th November, 2022.

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

----Ss. 302(b), 324, 353, 186 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Sindh Arms Act (V of 2013), S.23(1)(a)--- Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Act of terrorism, applicability of---Accused were charged that they on seeing the Police Officials started straight firing on them with intention to commit qatl-i-amd; in retaliation Police Officials also made some fire shots at accused persons, due to which one passerby child, two Police Officials and one accused sustained injuries, and later on passerby child died---Based on the particular facts and circumstances of the case, it appeared that the intent of the accused was to avoid his arrest by the police and as such he opened fire on the police with the sole purpose of evading his arrest at the hands of the police, keeping in view that nine FIRs were outstanding against him and he was wanted for many serious offences---Firing by accused had no object, intent, purpose or design to create terror and as such the accused was acquitted of offence under the Anti-Terrorism Act, 1997.

Ghulam Hussain v. State PLD 2020 SC 61 rel.

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

----Ss. 302(b), 324, 353, 186 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S.23(1)(a)---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---First Information Report lodged with promptitude within three hours of the occurrence---Accused were charged that they on seeing the Police Officials started straight firing on them with intention to commit qatl-i-amd, in retaliation Police Officials also made some fire shots at accused persons, due to which one passerby child, two Police Officials and one accused sustained injuries, and later on passerby child died---Record showed that the FIR was lodged with relative promptitude after only three hours of the incident and that slight delay was caused because the complainant had to take the injured to hospital which was a priority as at least two of the injured had received life threatening injuries and it was necessary to prioritize them in order to save their lives---Recording the memo of arrest and recovery on the spot took some time as such complainant had no time to consult with anyone in order to cook up a false case against the accused who in any event had been arrested on the spot and was named in the FIR as his mind would have been in turmoil following the incident and at that point in time his main concern would have been the condition of the seriously injured rather than putting together a false narrative in order to implicate the accused---Thus, there had been hardly any delay in lodging the FIR and even such slight delay had been fully explained---Said slight delay had neither led to any benefit to the prosecution nor caused any prejudice to the accused and as such slight delay in lodging the FIR based on the particular facts and circumstances of the case was not to fatal to the prosecution case--- Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was accordingly dismissed.

Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872 rel.

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

----Ss. 302(b), 324, 353, 186 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S.23(1)(a)---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence--- Ocular account--- Accused were charged that they on seeing the Police Officials started straight firing on them with intention to commit qatl-i-amd; in retaliation Police Officials also made some fire shots at accused persons, due to which one passerby child, two Police Officials and one accused sustained injuries, and later on passerby child died---Ocular account of the incident had been furnished by three eye-witnesses including two injured Police Officials---Injured eye-witness was not a chance witness as he was a police man on duty sent to arrest suspects---Said witness was injured at the scene as supported by the medical evidence---Said witness had no enmity or ill will to falsely implicate the accused in the present case who in any event was arrested on the spot by another police man---Said witness was not dented despite lengthy cross-examination---Eye-witness gave his S.161, Cr.P.C. statement a few days after the incident despite his injuries which was not materially improved during his evidence---Statement of said witness was found to be reliable, trustworthy and confidence inspiring and as such the same was believable and reliance could be placed on it---Other eye-witness was also injured at the scene of the incident by firearm during the encounter with the miscreants as was corroborated/supported by the medical evidence---Evidence of said witness corroborated the evidence of other injured eye-witness in all material respects and as such the same considerations applied to him as to the other injured witness---Other eye-witness was not a chance witness as he lived in the area and was drinking tea at a local tea shop---Said witness was an independent witness and he was not dented during cross-examination and he gave his S.161, Cr.P.C. statement a few days after the incident---Said witness was an accused in a narcotics case registered at the same Police Station as the policemen involved in the incident and since he gave no description of the accused he would be unlikely to be able to correctly identify him especially as it was a night time incident and he did not know the accused before---In the present case, the evidence of at least two of the eye-witnesses was found to be of very good quality and one of only average quality but it could be believed giving it lesser weight than the two police eye-witnesses---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was accordingly dismissed.

Naveed Asghar v. The State PLD 2021 SC 600; Tariq Pervez v. The State 1995 SCMR 1345; Shamoon alias Shamma v. The State 1995 SCMR 1377; Wazir Muhammad v. The State 1992 SCMR 1134; Noor Muhammad v. The State 2010 SCMR 97; Muhammad Mansha v. The State 2001 SCMR 199; Mureed v. The State PLD 2002 Kar. 530; Sajid Mehmood v. The State 2022 SCMR 1882; Mawas Khan v. The State PLD 2004 SC 330; Muhammad Ilyas v. The State 2011 SCMR 460; Rooh Ullah v. The State 2022 SCMR 888 and Muhammad Din v. The State 1985 SCMR 1046 ref.

Mushtaq Ahmed v. The State 2020 SCMR 474; Muhammad Ehsan v. The State 2006 SCMR 1857; Farooq Khan v. The State 2008 SCMR 917; Niaz-ud-Din and another v. The State and another 2011 SCMR 725 and Muhammad Ismail v. The State 2017 SCMR 713 rel.

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

----Ss. 302(b), 324, 353, 186 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S.23(1)(a)---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Medical evidence---Accused were charged that they on seeing the Police Officials started straight firing on them with intention to commit qatl-i-amd; in retaliation Police Officials also made some fire shots at accused persons, due to which one passerby child, two Police Officials and one accused sustained injuries, and later on passerby child died---Record showed that the medical evidence and medical reports fully supported the eye-witness/ prosecution evidence---Medical evidence confirmed that the deceased died from a firearm injury to the head; one Police Official received firearm injuries to his wrist, hand and belly and other Police Official received a firearm injury to his chest, and the accused received a firearm injury on his buttock and thigh---No blackening around any of the wounds was found which fit in with the eye-witness evidence that the encounter took place from about 20 paces from the police party and the accused and his co-accused---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was accordingly dismissed.

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

----Ss. 302(b), 324, 353, 186 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S.23(1)(a)---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Recovery of pistol and crime empties---Accused were charged that they on seeing the Police Officials started straight firing on them with intention to commit qatl-i-amd; in retaliation Police Officials also made some fire shots at accused persons, due to which one passerby child, two Police Officials and one accused sustained injuries, and later on passerby child died---In the present case, the accused was arrested on the spot in an injured condition as proven by the evidence of the police witnesses and the medical evidence and an unlicensed pistol was recovered from him on his arrest on the spot---Empties which were recovered at the scene led to a positive Forensic Laboratory when they were matched with the pistol which was recovered from the accused on his arrest on the spot---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was accordingly dismissed.

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

----Ss. 302(b), 324, 353, 186 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S.23(1)(a)---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence--- Minor contradictions in evidence of witnesses---Accused were charged that they on seeing the Police Officials started straight firing on them with intention to commit qatl-i-amd; in retaliation Police Officials also made some fire shots at accused persons, due to which one passerby child, two Police Officials and one accused sustained injuries, and later on passerby child died---Record showed that all the witnesses were consistent in their evidence and even if there were some contradictions in their evidence, they were minor in nature and not material and certainly not of such materiality so as to effect the prosecution case and the conviction of the accused---Evidence of the witnesses provided a believable, corroborated unbroken chain of events from the time the complainant received the spy information about the whereabouts of the suspects to the complainant calling for police reinforcements, to the police reinforcements being fired upon and injured with a child by stander being injured and killed when the police went to arrest the suspects who opened fire on the police on sight, to the police returning fire to the arrest of the accused on the spot in injured condition from whom an unlicensed pistol was recovered, to a positive Forensic Science Laboratory Report in respect of the recovered pistol and empties recovered at the crime scene---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was accordingly dismissed.

Zakir Khan v. State 1995 SCMR 1793 and Khadim Hussain v. The State PLD 2010 SC 669 rel.

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

----Ss. 302(b), 324, 353, 186 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S.23(1)(a)---Criminal Procedure Code (V of 1898), S. 103---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Non-association of private witnesses--- Inconsequential--- Accused were charged that they on seeing the Police Officials started straight firing on them with intention to commit qatl-i-amd; in retaliation Police Officials also made some fire shots at accused persons, due to which one passerby child, two Police Officials and one accused sustained injuries, and later on passerby child died---Admitted fact that S.103, Cr.P.C. was not complied with in the present case---However, it is now judicially recognized that in such type of criminal cases, now a days, due to general apathy in the public and fear of reprisals independent people are not willing to act as mashirs to avaoid unnecessarily embroiling themselves in legal process which might have repercussions for them and their family---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was accordingly dismissed.

Salah-uddin v. The State 2010 SCMR 1962 and Ibrarullah v. State 2021 SCMR 128 rel.

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

----Ss. 302(b), 324, 353, 186 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S.23(1)(a)---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Habitual offender and hardened criminal---Accused were charged that they on seeing the Police Officials started straight firing on them with intention to commit qatl-i-amd; in retaliation Police Officials also made some fire shots at accused persons, due to which one passerby child, two Police Officials and one accused sustained injuries and later on passerby child died---In the present case, the prosecution exhibited nine FIRs in respect of heinous offences in which the accused of present case was a nominated accused, which was the reason why he fired at the police when they came to arrest him---Said fact also indicated that the accused was a habitual offender and hardened criminal---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was accordingly dismissed.

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

----Ss. 302(b), 324, 353, 186 & 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. 342---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Defence plea---Accused were charged that they on seeing the Police Officials started straight firing on them with intention to commit qatl-i-amd; in retaliation Police Officials also made some fire shots at accused persons, due to which one passerby child, two Police Officials and one accused sustained injuries, and later on passerby child died---Record showed that the defence case was simply one of false implication by the police---Accused did not give evidence on oath---According to accused, he was arrested from a bus stop but he did not produce any defence witness to support his case as such court disbelieved the defence case as an afterthought in the face of reliable, trust worthy and confidence inspiring eye-witness and other corroborative/ supportive evidence against the accused which had not at all dented the prosecution case---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was accordingly dismissed.

Moula Bux Bhutto for Appellant.

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

2023 Y L R 2622

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Zulfiqar Ahmad Khan, JJ

BACHANDO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-142 of 2021, decided on 30th May, 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---Benefit of doubt---Non-association of private persons---Accused was found in possession of two kilograms charas---Record showed that though police party had advanced information about the availability of present accused along with charas but they did not bother to take with them any private person either from the place of information or from the place of incident to witness the event---Judicial approach has to be conscious in dealing with the cases in which testimony hings upon the evidence of Police Officials alone---Provisions of S. 103, Cr.P.C. are not attracted to the cases of personal search of the accused in such cases---However, where alleged recovery is made on a road (as had happened in the present case), omission to secure independent mashirs, particularly, in the case of spy information can not be brushed aside lightly by the court---No explanation on record why the independent witness had not been associated in the recovery proceedings---Appeal against conviction was allowed, in circumstances.

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

----S. 103---Search to be made in presence of witnesses---Object---Prime object of S. 103, Cr.P.C., is to ensure transparency and fairness on the part of police during the course of recovery; to curb false implications and minimize the scope of foisting fake recovery upon accused.

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

----S. 9(c)---Possession of narcotics---Police witnesses, testimony of---No doubt, police witnesses are as good as other independent witnesses and conviction can be recorded on their evidence, but their testimony should be reliable, dependable, trustworthy and confidence worthy---If such qualities are missing in their evidence, no conviction can be passed on the basis of evidence of police witnesses.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Discrepancies and flaws in the evidence of witnesses---Accused was found in possession of two kilograms charas---Record showed that there were discrepancies and flaws in the evidence of complainant and mashir of arrest and recovery---Complainant in his cross-examination had admitted that after receiving spy information, he had not sent any fake customer for purchasing charas from the accused---Said witness admitted that he had mentioned in FIR that accused was selling charas in open and at that time no purchaser of charas was available---No currency notes were recovered from the present accused at the time of his arrest---Said witness admitted that he was complainant as well as Investigating Officer in the present case---Mashir/Head Constable in his cross-examination had deposed that he did not know exact time of receiving spy information by SHO---Accused was selling charas in banana crop while the complainant deposed that accused was selling charas in an open way---Said witness further deposed that place of arrest and recovery subsisted near link road and they had not sent any fake purchaser to accused for verifying spy information---All the said discrepancies and lacunas in the case of prosecution led to the conclusion that perhaps the incident had not taken place in the fashion as stated in the FIR---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Safe custody and safe transmission of samples to the Forensic Science Laboratory not established---Effect---Accused was found in possession of two kilogram charas---According to the statement of complainant, he recovered the narcotics from accused and prepared the memo of arrest and recovery and deposited the same in Malkhana---Report of Laboratories and Chemical Examiner revealed that the charas was received by hand in the office through Head Constable after the delay of five (05) days but evidence on the record was silent that where the same remained for five (05) days---Similarly, evidence regarding safe transmission of alleged recovered narcotics to the laboratory for chemical analysis was also missing---If safe custody of narcotics and its transmission through safe hands was not established on the record, same could not be used against the accused---Chain of custody or safe custody and safe transmission of narcotics begins with seizure of the narcotic by the law enforcement officer, followed by separation of the representative samples of the seized narcotic, storage of the representative samples with the law enforcement agency and then dispatching thereof to the office of the Chemical Examiner for examination and testing---Such chain of custody must be safe and secure---Record of present case showed that it was not a safe transit of narcotics case---Appeal against conviction was allowed, in circumstances.

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

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

(f) Criminal trial---

----Benefit of doubt---Principle---Single circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused, would entitle the accused to its benefit not as a matter of grace and concession but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Ghulamullah Chang and Aijaz Ahmed Chandio for Appellant

Shewak Rathore, Deputy Prosecutor General, Sindh for the State.

2023 Y L R 2643

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ ALI AKBAR

and others---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 14 and 30 of 2020, decided on 12th May, 2022.

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

----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for extorting property, valuable security, etc., common intention, act of terrorism---Appreciation of evidence---Delay of one day in lodging the FIR--- Inconsequential--- Accused were charged for kidnapping the son of complainant for ransom and released him after receiving the ransom amount---Record showed that there was a delay of a single day in the lodging of FIR, but the same was explained by the complainant in deposing that they had started searching for the abductee on their own and when they were left hopeless he lodged the FIR---No suggestion was made to the complainant during his cross-examination that he had lodged the FIR after due deliberation, which impliedly reflected that such a delay was rather natural and did not serve any ulterior motives---Even otherwise, delay alone in the lodging of FIR was never a sufficient ground for acquittal and could not be used as ammunition to completely disregard the prosecution case--- Circumstances established that the prosecution had proved its case against the accused persons beyond shadow of any doubt---Appeal against conviction was accordingly dismissed.

Muhammad Zubair v. The State 2007 SCMR 437 rel.

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

----Ss. 365-A & 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., common intention, act of terrorism---Appreciation of evidence---Test identification parade---Accused were charged for kidnapping the son of complainant for ransom and released him after receiving the ransom amount---In the present case, the identification parade of the accused was conducted through two witnesses---Said accused was initially not known to both of them and was seen at the time of exchange of ransom for the first time---For an identification parade to be properly held, the accused must not be shown to the victims before the identification itself---To ensure that, Judicial Magistrate ensured that the face of the accused was hidden and he inquired from accused whether he had been shown to any of the witnesses to which he replied in the negative---As such, the identification parade was carried forward---Witness identified accused and stated that he went to a Market along with son of complainant/ witness with Rs. 5,000,000/ - and gave the said amount to him---Witness/son of complainant also identified the accused and stated that he had gone to a market with witness and had cash of Rs. 5,150,000/- which he gave to accused---Identification parade was conducted while following all the guidelines and there were no legal defects therein---Defence contended that the identification parade of the other accused persons was not conducted through the abductee himself, however the same was not necessary, firstly because he had never seen accused persons as they had stayed outside and were involved in the collection of ransom and secondly because other two accused persons were both identified by the abductee in Court and such identification inspired confidence---Circumstances established that the prosecution had proved its case against the accused persons beyond shadow of any doubt---Appeal against conviction was accordingly dismissed.

Muhammad Sharif v. The State PLJ 1990 Cr.C. Karachi 267; Yar Muhammad and 3 others v. The State 1992 SCMR 96; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Javed v. The State PLD 1994 SC 679; Arif Khan v. The State 1998 PCr.LJ 1287; Rashid Ahmed v. The State 2001 SCMR 41; Abdul Ghani v. The State 2002 LD 1075; Khalid Javed and another v. The State 2003 SCMR 1419; Muhammad Rafique v. The State and others 2010 PSC (Crl.) 307; Muhammad Akram v. The State 2012 SCMR 440; Muhammad Tufail v. The State 2013 SCMR 768; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; Mst. Mehboob Bibi and others v. The State 2017 SCMR 1835; Attaullah v. The State and another 2017 PCr.LJ 992; Fazal Subhan and another v. The State 2019 SCMR 1027; Ishtiaque Ahmed Mirza and 2 others v. Federation of Pakistan and others PLD 2019 SC 675; Muhammad Sohail and others v. The State and others 2021 PCr.LJ 1502; Muhammad Akbar v. The State 1998 SCMR 2538; Said Muhammad v. The State 1999 SCMR 2758; Khwaja Hasanullah v. The State 1999 MLD 514; The State v. Haider Zaidi and others PLD 2001 SC 401; Abdul Hussain

and others v. The State and others PLD 2008 SC 110; Muhammad Riz v. Bilqiaz Khan 2012 SCMR 721; The State/ANF v. Muhammad Arshad 2017 SCMR 283 and Muhammad Siddique and others v. The State 2020 SCMR 342 ref.

Mian Sohail Ahmed v. The State 2019 SCMR 956; Kanwar Anwaar Ali's case PLD 2019 SC 488; Ghazanfar Ali v. The State 2012 SCMR 215 and Dadullah and another v. The State 2015 SCMR 856 rel.

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

----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for extorting property, valuable security, etc., common intention, act of terrorism---Appreciation of evidence---Related and interested witnesses---Accused were charged for kidnapping the son of complainant for ransom and released him after receiving the ransom amount---Defence objection regarding the prosecution witnesses being related to the abductee and interested was of little, if any, assistance to the accused persons---Despite the close relationship of the complainant and his son with abductee, their evidence after careful consideration was found trustworthy---Mere relationship with the victim was not a ground to discard otherwise trustworthy evidence provided that there was no ill will or enmity between the witnesses and the accused, which was not the situation in the present case since the parties were not even known to each other---Circumstances established that the prosecution had proved its case against the accused persons beyond shadow of any doubt---Appeal against conviction was accordingly dismissed.

Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152 rel.

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

----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abduction for extorting property, valuable security, etc., common intention, act of terrorism---Appreciation of evidence---Call Data Record available on record---Accused were charged for kidnapping the son of complainant for ransom and released him after receiving the ransom amount---Call Data Record available on record showed calls from various international numbers and SIMs recovered from two accused persons at the time of their arrest were also shown in the same Call Data Record report as being in contact with each other and with witness/son of the complainant which further corroborated the prosecution version---Allegedly, Call Data Record was not verified through an expert witness nor was the issuer examined---However, that at most was a lapse on the part of the Investigating Officer---Circumstances established that the prosecution had proved its case against the accused persons beyond shadow of any doubt---Appeal against conviction was accordingly dismissed.

State v. Muhammad Arshad 2017 SCMR 283 rel.

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

----Ss. 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S. 342---Kidnapping or abduction for extorting property, valuable security, etc., common intention, act of terrorism---Appreciation of evidence---Defence plea---Accused were charged for kidnapping the son of complainant for ransom and released him after receiving the ransom amount---Defence plea was that accused were arrested on demand for a bribe from police; that the kidnapping took place on 06.02.2018 and the abductee was let go on 31.05.2018; that arrests of the two accused persons took place on 09.06.2018, which was after the release of the abductee and they (accused persons) were already known to the police by then---Validity---Statements of defence witnesses merely appeared to be belated arrangements made by the well-wishers of the accused persons which had no bearing on the outcome of the case---Even otherwise, defence witnesses had not been able to establish any ill-will or animosity on the part of the abductee and the complainant party, to whom they were not even known before the incident, who had otherwise fully implicated the accused persons for the commission of the offence---Another defence plea raised was that Rs. 10.15 million, that is the ransom, was arranged by the accused persons and given to the police, but it was instead foisted on them---It was a matter of record that the complainant had filed an application under S. 516-A, Cr.P.C., for collecting the ransom amount back and at no point did any of the accused persons object to the same besides taking the said stance in their S. 342, Cr.P.C. statements nor was the said order impugned before the appropriate forum---Thus, accused persons could not seek to gain benefit from the same---Circumstances established that the prosecution had proved its case against the accused persons beyond shadow of any doubt---Appeal against conviction was accordingly dismissed.

Ibrarurullah v. The State 2021 SCMR 128 rel.

Hashmat Khalid for Appellant (in Special Criminal Anti-Terrorism Appeal No. 14 of 2020).

Muhammad Iqbal Awan, Additional Prosecutor General, Sindh for the State (in Special Criminal Anti-Terrorism Appeal No. 14 of 2020).

Muhammad Saleem Ibrahim and Mehmood A. Qureshi for Appellant (in Special Criminal Anti-Terrorism Appeal No. 30 of 2020).

Muhammad Iqbal Awan, Additional Prosecutor General, Sindh for the State (in Special Criminal Anti-Terrorism Appeal No. 30 of 2020).

2023 Y L R 2660

[Sindh]

Before Aftab Ahmed Gorar, J

Syed ADNAN ZAFAR---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.(s) 618 of 2022, decided on 29th September, 2022.

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

----S. 498---Penal Code (XLV of 1860), Ss. 420, 468, 406 & 34---Cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating, criminal breach of trust, and common intention---Pre-arrest bail, confirmation of---First Information Report had been lodged with the unexplained delay of one year and no iota of evidence was available against the petitioner---Present case hinged upon the agreement, original of which was not available with the prosecution---Petitioner had denied signing / execution of agreement-in-question with the complainant, thus said fact (execution) required further enquiry which would be proved after recording evidence during the trial---No complaint of misuse of concession of bail or tampering the record had been pointed out, while petitioner was regularly appearing before High Court as well as Trial Court---Petitioner had, admittedly, not violated any condition on the basis of which his bail could be cancelled---Ad interim pre-arrest bail already granted to the petitioner was confirmed, in circumstances.

Shahid Arshad v. Muhammad Naqi Butt 1976 SCMR 360 ref.

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

----S.497(5)---Bail, cancellation/recalling of---Principles relating to cancellation of bail---Bail could be cancelled:- (i) if the bail granting order is patently illegal, erroneous, factually incorrect and has resulted into miscarriage of justice, (ii) accused has misused the concession of bail in any manner, (iii) accused has tried to hamper prosecution by persuading/ pressurizing prosecution witnesses, (iv) there is likelihood of absconsion of the accused beyond the jurisdiction of the Court, (v) accused has attempted to interfere with the smooth course of investigation, (vi) accused has misused his liberty while indulging into similar offence, (vii) some fresh facts and material has been collected during the course of investigation which tends to establish guilt of the accused.

Samiullah v. Laiq Zada 2020 SCMR 1115 ref.

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

----Ss. 497 & 498---Pre-arrest/Post-arrest bail, grant of---Evidence, appreciation of---Scope---At bail stage, deeper appreciation of evidence and circumstances, appearing in the case, is 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.

Haad Abid along with Applicant.

Muhammad Ali Leghari for the Complainant

Ms. Rahat Ehsan, Additional Prosecutor General Sindh.

2023 Y L R 6

[Lahore]

Before Ch. Abdul Aziz and Muhammad Amjad Rafiq, JJ

AMIR SALEEM and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 231377 and 231407 of 2018, heard on 25th November, 2021.

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

----S. 7(ff)---Explosive Substances Act (VI of 1908), Ss.4 & 5---Terrorism and recovery of explosive substance---Appreciation of evidence---Sentence, quantum of---Retribution, doctrine of---Applicability---First offender---Accused persons were convicted by Trial Court and sentenced variously maximum up to 10 years---Accused sought reduction in their sentences only---Validity---"Let the punishment fit the crime" captures the essence of retribution which is based upon the principle of just deserts, it advocates proportionality of sentence with acclaimed crime, it defines justice in terms of fairness and proportionality---Harshness of punishments should be proportionate to seriousness of crimes---Difficult to match punishments and crimes, since there is no way to objectively calibrate the moral depravity of particular crimes and / or the painfulness of specific punishments---Retribution is a backward looking theory of punishment, which looks to the past to determine what to do in the present time---Accused persons did not maintain any criminal history neither of any other offence nor of the offences of like nature under the charge in question---No evidence was brought on record with respect to their link with any terrorist or proscribed organization or their indulgence in prohibited religious activities---Accused persons were first offenders who deserved to be treated differently---Accused persons had been behind the bars since 20-02-2018 and as per jail report they served out a period of almost four years which was sufficient to meet the cannon of justice---High Court maintained conviction of accused persons and reduced their sentence to one already served---Appeal was dismissed, in circumstances.

Afzal Ur Rehman v. The State 2021 SCMR 359 rel.

(b) Criminal trial---

----Sentence, quantum of---Reduction---Principle---No legislated mitigating factors for reduction in sentence is available in criminal justice system to meet the situations except some judicial precedents of superior Courts, which are usually followed.

(c) Criminal trial---

----Criminal justice---"Conviction" and "sentence"---Distinction---Conviction is guilty verdict whereas sentence is a form of punishment awarded in pursuance to such verdict, either of a fine or imprisonment.

Barrister Muhammad Momin Malik for Appellant (in Criminal Appeal No.231377 of 2018).

Muhammad Asif Javaid Qureshi, for Appellant (in Criminal Appeal No.231407 of 2018).

Rai Akhtar Hussain Kharal, Deputy Prosecutor General for the State.

2023 Y L R 24

[Lahore]

Before Muhammad Tariq Nadeem, J

SAIF ULLAH and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 208, Criminal Revision No. 388 and P.S.L.A. No. 101 of 2017, heard on 23rd November, 2021.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence--- Benefit of doubt--- Chance witnesses--- Scope---Accused were charged for committing murder of the brother of the complainant by firing---Motive was that the deceased and nephew of the complainant were receiving threatening calls from two mobile phones--- Statements of eye-witnesses were recorded after one month of the occurrence---Prosecution had failed to explain the delay of one month in recording the statements of said eye-witnesses---Manifested from prosecution evidence that eye-witnesses were real brothers and brother of father-in-law of deceased, respectively---Question arose that when their close relative was murdered why they came back to their homes, soon after the occurrence and not approaching the police and why remained silent for one month---Held, that the eye-witnesses were not present at the time and place of occurrence and complainant had introduced them subsequently as eye-witnesses---Eye-witnesses could not justify the reason given by them for their presence at the place of occurrence at the relevant time---Said witnesses were chance witnesses and as such their evidence was not free from doubt---Witnesses of ocular account were not witnesses of inquest report and post-mortem report of the deceased---If they were present at the time and place of occurrence, they must have been the witnesses of inquest report and post-mortem report---Similarly, said witnesses should have escorted the dead body to the hospital being the close relatives and their names should have been mentioned in the post mortem report in the column of 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.

Kashif Ali v. The Judge Anti-Terrorism, Court II, Lahore and others PLD 2016 SC 951; Akhtar Ali and others v. The State 2008 SCMR 6; Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Muhammad Irshad v. Allah Ditta and others 2017 SCMR 142; Muhammad Asif v. The State 2017 SCMR 486 Sufyan Nawaz and another v. The State and others 2020 SCMR 192; Naveed Asghar v. The State PLD 2021 SC 600; Nadeem alias Kala v. The State and others 2018 SCMR 153; Abdul Jabbar alias Jabri v. The State 2017 SCMR 1155 and Khalid Mehmood and another v. The State and others 2021 SCMR 810 rel.

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

----Ss. 302, 109 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Benefit of doubt---Test identification parade---Scope---Accused were charged for committing murder of the brother of the complainant by firing---Prosecution had relied upon the identification parade of the accused, who was rightly identified by eye-witnesses---Both the said eye-witnesses were related and chance witnesses and their evidence was not worthy of reliance---Identification parade had no evidentiary value---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.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Defective investigation--- Scope--- Accused were charged for committing murder of the brother of the complainant by firing---Prosecution case was that complainant's brothers including deceased and nephew were receiving threatening phone calls from cell phone one specific number was identified registered in the name of one accused who was arrested by the police and also obtained his physical remand for two days from the Court of competent jurisdiction---Said fact was also admitted by complainant in his cross-examination---Said accused was not got identified by the eye-witnesses---Owner of other SIM number could not be traced during the course of investigation nor any evidence was produced in that respect before 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.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Night time occurrence---Source of light---Scope---Accused were charged for committing murder of the brother of the complainant by firing---Narration of FIR transpired that no source of light had been described at the place of occurrence---Rough site plan showed no source of light had been described whereas in scaled site plan availability of electric bulb had been shown but the same was not taken into possession by the Investigating Officer---Prosecution had failed to establish the fact of such availability of source of light 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 shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Weapon of offence (pistol) was recovered on the pointation of accused---Reliance---Scope---Accused were charged for committing murder of the brother of the complainant by firing---Record showed that pistol 30 calibre was recovered at the pointation of the accused---Witnesses of that recovery were closely related to the deceased and their evidence had already been disbelieved---Evidence of recovery was inconsequential and not helpful to the prosecution because the crime empty and pistol were sent together to the Office of Forensic Science Agency after the arrest of the accused---Positive report of Forensic Science Agency had also lost its significance---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.

Nazeer Ahmad v. The State 2016 SCMR 1628 and Asad Rehmat v. The State and others 2019 SCMR 1156 rel.

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

----Ss. 302, 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Motive was not proved---Scope---Accused were charged for committing murder of the brother of the complainant by firing---Motive alleged by the prosecution was that deceased and his brother as well as their nephew were receiving threatening phone calls from cell phones---While taking the U-turn the prosecution introduced another motive that deceased was murdered by accused persons, who had illicit relations inter se---Lady accused was happened to be wife of brother of deceased, who oftenly forbade his sister-in-law upon which she was annoyed with deceased---Prosecution had failed to prove the fact of illicit relationship of accused with acquitted lady co-accused---No oral as well as documentary evidence had been produced in support of motive alleged by the prosecution---Silence with regard to minutiae of motive alleged by the prosecution, motive was, discarded---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.

(g) Criminal trial---

----Motive---Scope---If the prosecution assert a motive but failed to prove the same then such failure on the part of the prosecution might react against a sentence to be passed against a convict on the charge of murder.

Noor Muhammad v. The State 2010 SCMR 97; Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344 and Manzoor Ahmed Shah and others v. The State and others 2019 SCMR 2000 rel.

(h) Criminal trial---

----Benefit of doubt---Principle---In case of doubt, its benefit must go to the accused not as a matter of grace, but of right.

Tariq Pervez v. The State 1995 SCMR 1345; Ayub Masih v. The State PLD 2002 SC 1048; Muhammad Akram v. The State 2009 SCMR 230; Khalid Mehmood and others v. The State 2011 SCMR 664; Arshad Khan v. The State 2017 SCMR 564; Muhammad Mansha v. The State 2018 SCMR 772; Asia Bibi v. The State and others PLD 2019 SC 64; Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652; Najaf Ali Shah v. The State 2021 SCMR 736 and Jehangir v. Aminullah and others 2010 SCMR 491 rel.

(i) Appeal against acquittal---

----Double presumption of innocence---Interference--- Scope--- Accused after acquittal earned a double presumption of innocenceand to rebut the same heavy onus laid on the prosecution.

Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53 rel.

Khalida Parveen and Syed Ali Muhammad Zahid Bokhari for Appellants.

Moeen Ali, .D.P.G. for the State.

Farrukh Gulzar Awan and Wasif Javed for the Complainant.

2023 Y L R 37

[Lahore (Bahawalpur Bench)]

Before Safdar Saleem Shahid, J

Syed QALANDAR HUSSAIN SHAH---Appellant

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No. 9653 of 2019, heard on 29th September, 2021.

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

----O. XVI, R.1---List of witnesses---Matter to be decided on merit---Respondent/ plaintiff filed suit for specific performance of contract on basis of oral agreement to sell against petitioner/ defendant---Issues were framed and parties were directed to submit their list of witnesses within seven (7) days but petitioner/defendant had no knowledge about the said order---When evidence of respondent/plaintiff was closed then it came into knowledge of petitioner/ defendant that list of witnesses was not submitted by petitioner within time---Petitioner/defendant filed an application before Civil Court for submitting list of witnesses which was dismissed---Petitioner filed a civil revision before Revisional Court which was also dismissed---Held, that order sheet appended with the petition revealed that on 10..03.2016 application filed by respondent for temporary injunction was allowed and after farming of issues Trial Court directed the parties to submit list of witnesses and certificate for readiness to produce evidence within seven (7) days, said order was passed by Trial Court in presence of both parties---Suit was adjourned on many dates for recording of evidence of the plaintiff and evidence of respondents witnesses was recorded and counsel for the petitioner conducted cross-examination upon them---Plaintiff produced his documentary evidence and then the case was fixed for evidence of petitioner/defendant---Counsel for the petitioner filed an application before Trial Court for submitting list of witnesses at belated stage which was dismissed by Trial Court, which mean that counsel for the petitioner had been appearing in the Court but did not file application for submitting list of witnesses---Counsel for the petitioner requested for only one opportunity to submit list of witnesses, even on payment of costs as valuable rights of the petitioner were involved in the matter---Petition was allowed by High Court and Trial Court was directed to grant only one opportunity and fixed a date for submitting list of witnesses by the petitioner and if the cost imposed was not paid or list of witnesses was not submitted on the fixed date as directed, Trial Court should proceed with the matter in accordance with law.

(b) Administration of justice---

----Technicalities of procedure ought to be avoided and matter should be decided on merits---Petition was allowed.

Mst. Bundi Begum v. Munshi Khan and others PLD 2004 SC 154; Syed Sharif ul Hassan through LRs. v. Hafiz Muhammad Amin and others 2012 SCMR 1258 and Zohra Bibi and another v. Haji Sultan Mahmood and others 2018 SCMR 762 rel.

Raja Khizar Hayat for Petitioner.

Sheikh Karim ud Din for Respondent No. 3.

2023 Y L R 57

[Lahore (Multan Bench)]

Before Sohail Nasir, J

Mst. NOORAN MAI through legal heirs---Appellant

Versus

SHAFQAT ALI---Respondent

Civil Revision No. 1367 of 2016, heard on 11th November, 2021.

Arbitration Act (X of 1940)---

----S. 22---Qanun-e-Shahadat (10 of 1984), Art. 33---Report of arbitrator---Opportunity to parties to file objections before making award rule of court---Suit for declaration filed by petitioner that the sale deed and mutation were result of fraud---Petitioners' assertion was that she never alienated property to respondent---Respondent defended the transactions and asked for dismissal of suit---Parties agreed to refer the matter to the Lambardar of the village with undertaking that they would be bound by his decision---After seven days petitioner submitted an application to change the name of Lambardar for certain reasons---Petitioner placed three names and both the parties made consensus that no further application for change of arbitrator would be made---Petitioner filed another application for withdrawal of her offer for decision of case through arbitrator, which was turned down by Trial Court as well as revisional Court---Constitutional petition filed by petitioner was also dismissed by High Court---Arbitrator presented his report that version of petitioner was not correct and the property was rightly purchased by respondent---On basis of said report the suit of petitioner was dismissed---Said decision was assailed by the petitioners through an appeal which was also dismissed by Appellate Court---Held, that Art. 33 of the Qanun-e-Shahadat, 1984, made it clear that statement of person expressly referred for information with regard to matter in dispute was an admission---If a dispute was forwarded, the same had to be decided by the person on the basis of information that was already in his knowledge but he could not inquire into the controversy , hear the parties and decide the same---Arbitrator had to simply make a statement about the fate of conflict on the basis of information, nothing more nothing less---Award could not be made a rule of court without first giving an opportunity to the parties to file the objections thereto and decision thereof---Such omission on part of Trial Court was ignored by Appellate Court---Civil revision was allowed, in circumstances---Case was remanded to the Trial Court with the direction that suit shall be deemed to be pending and will proceed from the stage when the award by arbitrator was filed.

Ghulam Farid Khan v. Muhammad Hanif Khan and others 1990 SCMR 763 and Sher Muhammad and others v. Muhammad Afzal and others PLD 2011 Lah. 412 rel.

Syed Muhammad Najmul Saqib Mumtaz for Petitioners.

Respondent Ex-parte.

2023 Y L R 64

[Lahore (Bahawalpur Bench)]

Before Muhammad Shan Gul, J

MANZOOR HUSSAIN---Petitioner

Versus

GOVERNMENT OF PUNJAB through Chief Secretary, Punjab Lahore and others---Respondents

Writ Petition No. 5942 of 2021/BWP, heard on 27th July, 2021.

(a) Interpretation of statutes---

----Regulations--- Fundamental rights, exercise of---Principle---In the context of exercise of fundamental rights, regulation can never mean total prohibition---By way of and for the purpose of regulating a right, regulations which are so intrusive so as to take away, deny and prohibit enjoyment of right in question cannot be imposed even by law.

Arshad Mahmood's case PLD 2005 SC 193 rel.

(b) Administration of justice---

----Fundamental rights---Enforcement---Administrative instructions or administrative guidelines or even Standard Operating Procedures without requisite legal backing cannot be allowed to make inroads in and dilute fundamental rights as contained in the Constitution---Administrative instructions are neither laws nor rules and these can only be subservient to laws and rules and, therefore, cannot be allowed to dilute the allowance and freedom afforded by the Constitution.

Hashwani Hotels Limited v. Federation of Pakistan and others PLD 1997 SC 315 and Anoud Power Generation Limited and others v. Federation of Pakistan and others PLD 2001 SC 340 rel.

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

----S. 24-A---Speaking orders---Scope---Any reasonable exercise that attempts to address an issue must contain independent reasons for reaching a conclusion, especially so if exercise is mandated by statute---Reasons given for a decision explain justification or logic for such decision---Reasons provide solace to the person against whom a decision has been rendered about the decision not been fanciful, whimsical or arbitrary.

R. v. HEFC ex. P Institute of Dental Surgeons (1994) 1 ALL ER 651 rel.

(d) Jurisprudence---

----"Law"---Connotation---Law means law made by Parliament or a Provincial Assembly and not administrative instructions, Standard Operating Procedures, guidelines or closet memorandums without any statutory backing.

Government of West Pakistan v. Haider Bukhsh PLD 1969 SC 210 rel.

(e) Punjab Civil Administration Act (III of 2017)---

----S. 16---Constitution of Pakistan, Arts.20 & 199---Constitutional petition---Freedom of religion---Religious congregation---Petitioner was from Fiqa-e-Jafria who was aggrieved of denial of authorities to hold Majlis-e-Aza (religious congregation) within the precincts of his property where residents were of his sect---Validity---Authorities denied petitioner an unqualified enjoyment of his right to profess, affirm or propagate his faith or to freely show allegiance to his religious beliefs---Such denial was on the basis of set of guidelines with no statutory backing---Petitioner's application was neither motivated by malice nor rooted in an ulterior aim---Community represented by petitioner had interests that were not at odds with those of the petitioner---Permission should not have been withheld especially because the petitioner when he had agreed and willing to abide by, follow and carry out, security instructions prescribed by the authorities, if he was granted requisite permission---High Court set aside the order passed by authorities and matter was remanded to Deputy commissioner so as to be considered afresh by him after providing an opportunity of hearing to petitioner in the matter---Constitutional petition was allowed accordingly.

PLD 2014 SC 699; Lavender v. Minister of Housing (1970) 1WLR 1231; Ex Parte LONRHO. (1970) 1WLR 525; R. v. Secretary of State Home Department (2003) 1 WLR 1230; R. v. Police Complaints Authority Ex Parte Madden (1983) 1WLR 447; Syed Dilshad Hussain v. Province of Punjab PLD 1982 Lah. 153 and Muhammad Siddique v. District Magistrate Lahore 1997 MLD 588 ref.

Muhammad Bhatti v. District Magistrate Gujrat 1985 PCr.LJ 301 and Suo Motu actions regarding suicide bomb attack of 22-9-2013 on the Church in Peshawar and regarding threats being given to Kalash tribe and Ismailies in Chitral PLD 2014 SC 699 rel.

Naeem Akhtar Gujjar for Petitioner.

Jam Abdul Malik, Assistant Advocate General Punjab with Imran Qureshi, Deputy Commissioner Lodhran, Ashraf Salah, Assistant Commissioner (HQ) Lodhran and Aamir, S.H.O. Lodhran for Respondents.

Ms. Mehwish, Research Officer.

2023 Y L R 78

[Lahore]

Before Ch. Muhammad Iqbal, J

SAIF ULLAH KHAN through Legal heirs---Petitioner

Versus

ZIA ULLAH KHAN---Respondent

Civil Revision No. 45025 of 2017, heard on 9th March, 2022.

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

----O. IX, R. 13---Suit for specific performance filed by the respondents was decreed ex-parte---Petitioners filed application for setting aside ex-parte decree which was concurrently dismissed---Validity---Onus to prove the fact that ex-parte judgment/decree was obtained by respondent by practicing fraud / misrepresentation was upon the petitioners---One of the petitioners appeared as witness and deposed that named Advocate was appointed as counsel who did not inform them about the proceedings of the case; that he had no knowledge that on certain date both the counsel of the parties recorded statements---Respondent as witness stated during examination that petitioners were aware of the proceedings of the suit; that they filed written statement; that stay application was dismissed and he filed appeal wherein the same named Advocate represented the petitioners; that the petitioners were minor at the time of institution of his suit---Admittedly, petitioners were minor at the time of passing of the ex-parte decree---Courts below decided the issue as a routine matter against the minors/petitioners---Petitioners proved their assertions through concrete/reliable/convincing oral and documentary evidence which material facts had not been taken in to consideration by the courts below---High Court had plenty jurisdiction to reverse the illegal/perverse concurrent findings---Revision petition was dismissed accordingly and suit of the respondents was deemed pending before the Trial Court.

(b) Constitution of Pakistan---

----Art. 10A---Court had the duty to look into the rights of the minors and the Courts had to realize that a minor litigant was considered to be under Courts' protection and it was Courts' duty to watch over the minors' interests and ensure that he is duly represented/defended in the proceedings before them.

Muhammad Amjad Khan Afridi and others v. Shad Muhammad and others PLD 2022 SC 27 rel.

Malik Matee Ullah for Petitioner.

Malik Salim Iqbal Awan for Respondent.

2023 Y L R 86

[Lahore]

Before Ch. Muhammad Iqbal, J

MUHAMMAD DILSHAD and others---Petitioners

Versus

MUHAMMAD AKRAM and others---Respondents

Civil Revision No. 250 of 2013, heard on 4th March, 2022.

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

----Art. 113---Civil Procedure Code (V of 1908), O. I, R. 1---Specific performance of agreement to sell---Predecessor of the respondents filed suit alleging that the predecessor of petitioners/defendant purchased the suit house in auction; that no proprietary rights were granted to him by settlement department; that predecessor of respondents purchased the same house from the predecessor of petitioners through agreement to sell but he refused to execute the sale deed---Suit was concurrently decreed---Validity---Respondent/plaintiff admitted in plaint that sale deed could not be registered because proprietary rights of the suit property were not conferred by the Settlement Department---Evacuee property was owned by provincial government but the respondents had not impleaded the Settlement Department/Chief Settlement Commissioner as party in suit---Revision petition was allowed and suit of the respondents was dismissed, in circumstances.

Commissioner Multan Division, Multan and others v. Muhammad Hussain and others 2015 SCMR 58; Salehoon and others v. Sadara 1999 Civil 626; Mst. Maqbool Begum and others v. Gullan and others PLD 1982 SC 46 and Muhammad Siddique (Deceased) through L.Rs. and others v. Mst. Noor Bibi (Deceased) through L.Rs. and others 2020 SCMR 483 rel.

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

----Ss. 42 & 23---Absence of proprietary rights---If a person was not owner of the property and the property was owned by the state, he could not execute any sale deed until he got proprietary rights of the same and if any transaction made, same would not take effect and its operation shall remain suspended till acquisition of the said rights.

Muhammad Sadiq v. Muhammad Ramzan and 8 others 2002 SCMR 1821 rel.

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

----O. I, R. 1---In the absence of necessary party, no effective decree/order could be passed.

Province of Punjab through Secretary Excise and Taxation Department, Lahore and others v. Murree Brewery Company Ltd (MBCL) and another 2021 SCMR 305 rel.

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

----S. 115--- Revisional jurisdiction---Concurrent decree---Scope---High Court had jurisdiction to interfere in the perverse concurrent judgments/decrees of the lower fora.

Nazim-ud -Din and others v. Sheikh Zia-Ul-Qamar and others 2016 SCMR 24 rel.

Malik Muhammad Riaz Kalwal for Petitioners.

Javed-ur-Rehman Rana for Respondents Nos.1 to 10.

Asif Mehmood Cheema, Additional Advocate General for Respondent No.11.

2023 Y L R 94

[Lahore]

Before Ali Baqar Najafi and Farooq Haider, JJ

ATIF ABBASS---Appellant

Versus

The STATE through S.I.---Respondent

Criminal Appeal No. 18570 of 2019, heard on 27th January, 2022.

(a) Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5-A---Arms Ordinance (XX of 1965), S. 13---Anti-Terrorism Act (XXVII of 1997), S.7---Recovery of explosive substance and firearms, act of terrorism---Appreciation of evidence---Sentence, reduction in--- Ocular account---Scope---Prosecution case was that two kilograms explosive, safety fuse measuring about 5-feet, a match box containing three detonators and pistol 30-bore along with magazine and seven live bullets were recovered from the possession of the accused---Ocular account of the incident had been furnished by complainant and recovery witness---Said witnesses categorically deposed and supported case of the prosecution through their statements recorded during trial of the case---Testimony of said witnesses remained un-shattered inspite of searching cross-examination and their credit could not be shaken---Any enmity or animosity whatsoever with respect to deposing falsely against the accused by said witnesses could not come on record---Recovery of said articles from possession of the accused had been proved by the prosecution--- Circumstances established that the prosecution had proved its case, however conviction recorded and sentence awarded to the accused under S. 7(ff) of Anti-Terrorism Act, 1997, was set-aside, conviction recorded under S. 5 of Explosive Substances Act, 1908, was maintained but sentence was reduced from seven years to three years in circumstances---Appeal was dismissed with said modification in sentence.

(b) Criminal trial---

----Witness---Police witness---Scope---Police Officials are as good witnesses unless proved that they are having ill will or animosity against the accused/convict.

Naseer Ahmad v. The State 2004 SCMR 1361 and Tariq Mehmood v. The State through Deputy Attorney-General, Peshawar PLD 2009 SC 39 rel.

(c) Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5-A---Arms Ordinance (XX of 1965), S. 13---Anti-Terrorism Act (XXVII of 1997), S.7---Recovery of explosive substance and firearms, act of terrorism---Appreciation of evidence---Sentence, reduction in---Safe custody of the recovered weapons at police station and their transmission to the Forensic Science Laboratory---Scope---Prosecution case was that two kilograms explosive, safety fuse measuring about 5-feet, a match box containing three detonators and pistol 30-bore along with magazine and seven live bullets were recovered from the possession of the accused---Prosecution had proved that after recovery of said articles from possession of the accused, same were handed over to Investigating Officer, who handed over the same except detonators to Moharrir, who kept the same in safe custody and then handed over said parcels of samples to Police Official, who delivered the same intact to Forensic Science Agency---Said witnesses stated about said facts in their testimony in the Court and their evidence remained un-shattered---Safe custody of said articles except detonators had been proved beyond shadow of doubt---Record showed that 3-detonators were recovered from possession of the accused, but detonator comprised upon elongated hollow metal tube containing explosive, however, in the report of Bomb Disposal Commander any colour, type, gauge, name of metal e.g. aluminium etc. or even availability of metal tube was not mentioned---Similarly, Bomb Disposal Commander neither extracted any explosive from stated detonators nor mentioned its origin/detail---Said report of Bomb Disposal Commander was mere ipse dixit and could not be made basis to hold that detonators were actually detonators falling within the definition of Explosive Substances Act, 1908---Was essential to take out explosive material from the instrument statedly called as detonators and then had verified of the same from the expert, however, admittedly, Bomb Disposal Commander neither took out/extracted explosive from stated detonators nor sealed/sent the sample to Forensic Science Agency for analysis---Recovered detonators could not be proved to be containing any explosive substance---Bomb Disposal Squad was meant to defuse the stated/expected explosive and prosecution could not produce any document/ notification in the case to show that Bomb Disposal Commander was an expert within the meaning of Art. 59 of Qanun-e-Shahadat, 1984, to conclusively opine about nature of the explosive rather such document produced and tendered by the prosecution itself reflected that sample of explosive would be taken out from recovered detonators and sent to Forensic Science Agency for expert opinion to know its origin/nature---Forensic Science Agency was notified expert in the case---Conviction recorded against the accused to the extent of recovery of said statedly recovered detonators was not sustainable---Circumstances established that the prosecution had proved its case, however conviction recorded and sentence awarded to the accused under S. 7(ff) of Anti-Terrorism Act, 1997 was set-aside, conviction recorded under S. 5 of Explosive Substances Act, 1908 was maintained but sentence was reduced from seven years to three years, in circumstances---Appeal was dismissed with said modification in sentence.

(d) Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5-A---Arms Ordinance (XX of 1965), S. 13---Anti-Terrorism Act (XXVII of 1997), S.7---Recovery of explosive substance and firearms, act of terrorism---Appreciation of evidence---Sentence, reduction in---Scope---Prosecution case was that two kilograms explosive, safety fuse measuring about 5-feet, a match box containing three detonators and pistol 30-bore along with magazine and seven live bullets were recovered from the possession of the accused---Relationship of the accused with any terrorist, terrorist organization/ proscribed organization could not be established---Any material/evidence to fulfil ingredients of the offence defined under S. 6(2)(ee) of Anti-Terrorism Act, 1997, could not be brought on record by the prosecution---Prosecution in such state of affairs could not prove charge regarding offence under S. 7(ff) of Anti-Terrorism Act, 1997---Conviction recorded and sentence awarded to the accused under S. 7(ff) of Anti-Terrorism Act, 1997, was not sustainable---Circumstances established that the prosecution had proved its case, however conviction recorded and sentence awarded to the accused under S. 7(ff) of Anti-Terrorism Act, 1997 was set-aside, conviction recorded under S. 5 of Explosive Substances Act, 1908, was maintained but sentence was reduced from seven years to three years, in circumstances---Appeal was dismissed with said modification in sentence.

Ghulam Hussain and others v. The State and others PLD 2020 SC 61 rel.

(e) Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5-A---Arms Ordinance (XX of 1965), S. 13--- Anti-Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898), S. 342---Recovery of explosive substance and firearms, act of terrorism---Appreciation of evidence---Sentence, reduction in---Defence plea---Scope---Prosecution case was that two kilograms explosive, safety fuse measuring about 5-feet, a match box containing three detonators and pistol .30-bore along with magazine and seven live bullets were recovered from the possession of the accused---Accused had taken specific plea that he was abducted much prior to the registration of the case and subsequently roped in the case at belated stage---Accused himself was a best witness to depose entire detail that who abducted him, where he was kept, when he was brought to the place of occurrence and of course law had provided a chance to him in that behalf through S. 340(2), Cr.P.C. while appearing his own witness in support of his version but he did not opt so---Although non-appearance of accused under S. 340(2), Cr.P.C., for disproving allegation levelled against him did not create any inference against him yet when he had taken specific plea and regarding said plea, he was the best witness, then he could prove his said version by appearing so and his non-appearance was to be taken as withholding the best evidence---Accused had produced copy of FIR which was got recorded by his real brother regarding his said abduction but he did not produce his said brother in support of the same and again withheld best evidence---When case of the prosecution had been kept in juxtaposition with such defence version/plea taken by the accused, then it had become crystal clear that defence version was neither proved nor any dent was created in the case of the prosecution rather prosecution version to extent of recovery of 2-kgs explosive, safety fuse and pistol .30-bore along with magazine and bullets from the possession of the accused had been proved beyond shadow of doubt---Circumstances established that the prosecution had proved its case, however conviction recorded and sentence awarded to the accused under S. 7(ff) of Anti-Terrorism Act, 1997 was set-aside, conviction recorded under S. 5 of Explosive Substances Act, 1908 was maintained but sentence was reduced from seven years to three years, in circumstances---Appeal was dismissed with said modification in sentence.

Faiz Rasool Khan Jalbani for Appellant.

Arshad Ali Farooqi, Deputy Prosecutor General, for the State.

2023 Y L R 118

[Lahore (Rawalpindi Bench)]

Before Ch. Muhammad Masood Jahangir, J

SABIR HUSSAIN and others---Petitioners

Versus

MEHBOOB HUSSAIN and others---Respondents

Civil Revision No. 906-D of 2011, heard on 25th May, 2022.

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

----S. 42---Unregistered gift deed---Proof--- Plaintiff/respondent instituted suit for declaration to claim his exclusive ownership of a house asserting that the house had orally been gifted out to him by his deceased father through unregistered memo. of gift---Defendants/ petitioners contested the suit with the stance that neither any offer of gift was made nor there was any scope of acceptance---Trial Court dismissed the suit of plaintiff/respondent---Appeal filed by respondent was allowed---Held, that stamp paper, memo of unregistered gift deed, was not issued for writing of gift deed, rather it was obtained for the execution of iqrarnama, which caused doubt about its honest construction---Memo. of gift was purportedly scribed on 02.10.2001, whereas father/alleged donor survived till 10.03.2004,but during said span neither memo. of gift was brought to light nor the suit was filed---Nothing was on record that either the disputed house was under some clog or controlled by an injunction, thus there was no hurdle to transfer the same through registered gift deed, so as to vest its ownership---Unregistered document like memo of gift, in present case, did not confer title qua immovable property---Muslim was free to make oral gift with regard to his immovable property, but in case of denial/dispute, it became sine qua non for the beneficiary to independently prove the ingredients of gift which were 'offer', 'acceptance', and 'delivery of possession'---Except respondent / plaintiff, no one uttered a single word that either offer of gift was made by the alleged donor or accepted at the end of donee in his presence---In absence thereof the basic oral transaction was not proved as well---When through a gift, deprivation of some or either of legal heir was involved, a heavy onus otherwise to prove original transaction as well as reasons for doing so strongly rested upon its beneficiary---Respondent had asserted that their late father used to live with him and also performed Hajj at respondent's expenses, thus being pleased with such services made gift of the house---To prove such fact neither corroborating evidence was examined nor contents of memo. of unregistered gift were in consonance---Memo. of unregistered gift was found inadequate to demonstrate the happening of original transaction because time, date, month and year were not disclosed therein so as to prove that when or where the alleged basic oral gift was offered, accepted followed by change of possession---Revision was accepted and the judgment and decree of Trial Court dismissing the suit was restored, in circumstances.

Allah Diwaya v. Ghulam Fatima, represented by Ahmad Sher and others PLD 2008 SC 73; Mst. Saadia v. Mst. Gul Bibi 2016 SCMR 662; Muhammad Ashraf v. Bahadur Khan and others 1989 SCMR 1390; Barkat Ali through legal heirs and others v. Muhammad Ismail through legal heirs and others 2003 SCMR 1829 and Farid and others v. Muhammad Tufail and another 2018 SCMR 139 rel.

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

----Art. 59---Unregistered gift deed---Proof---Comparison of signatures--- Respondent / beneficiary, to establish genuineness of his hub document, had a chance to make request for the comparison of alleged signatures of the donor available over memo of unregistered gift, especially when, petitioners claimed it to be forged, fictitious one, but he did not opt to do so---Opinion of expert was one of the modes of producing evidence and if the said report was properly proved, same could be used as corroborative piece of evidence---By not restoring to said exercise, respondent/plaintiff himself incurred adverse presumption against him.

Muhammad Qayyum and 2 others v. Muhammad Azeem through legal heirs and another PLD 1995 SC 381 rel.

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

----Arts. 17 & 79---Unregistered gift deed---Proof---Future and financial obligation---Object and nature---Unregistered memo. of gift was written after enactment of the Qanun-e-Shahadat, 1984 which certainly involved future obligation and though it was attested by two witnesses per mandate of Art. 17 of the Order yet one of the witnesses 'S' was examined; surprisingly the other witness 'Y' despite availability was not produced---Object and import of Art.79 of the Order per its language was that the document entailing future/ financial obligation must be proved by two attesting witnesses---Consequential phrase "shall not be used as evidence" until required figure of marginal witnesses were produced to substantiate its execution and alleged transaction placed embargo for using it in evidence---Article 79 of the Order was a mandatory as well as inflexible provision and deserved its due compliance by Appellate Court---Examination of the attesting witnesses was binding, which was not observed in the case, therefore could not be declared to have been proved for use in evidence---Fulfillment of Art. 79 of the Order was sine qua non for respondent, which was not complied with, thus unregistered memo. of gift remained un- proved and inadmissible in evidence.

Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483 and Islam-ud-Din through L.Rs. and others v. Mst. Noor Jahan through L.Rs. and others 2016 SCMR 986 rel.

(d) Administration of justice---

----If law requires a thing to be done in specific form, then it has to be made in strict compliance thereof, otherwise it is deemed that it was never accomplished.

Zia-ur-Rehman v. Syed Ahmed Hussain and others 2014 SCMR 1015 and The Collector of Sales Tax, Gujranwala and others v. Messrs Super Asia Muhammad Din and Sons and others 2017 SCMR 1427 rel.

Basharat Ullah Khan for Petitioners.

Ch. Naseer Ahmad Tahir for Respondents Nos.1 and 4.

Malik Ghulam Akbar Awan, for Respondents Nos.2, 3, 5 and 7.

Rana Muhammad Ashraf for Respondent No.6.

2023 Y L R 130

[Lahore (Multan Bench)]

Before Muhammad Shan Gul, J

MOHAMMAD ASLAM WADANI---Appellant

Versus

PRESIDING OFFICER, DISTRICT CONSUMER COURT, D.G. KHAN and 2 others---Respondents

F.A.O. No. 75 of 2014, heard on 17th January, 2022.

(a) Punjab Consumer Protection Act (II of 2005)---

----Ss. 25, 31 & 33---Consumer complaint--- Judgment--- Reasons, absence of---Complaint filed by respondent / complainant was partly accepted by Consumer Court imposing compensatory amount against appellant---Validity---Irrespective of the issue of strict application of Code of Civil Procedure, 1908 or Qanun-e-Shahadat, 1984, Consumer Court was bestowed with powers to adjudicate upon rights and liabilities of parties and to pass legally binding and judicially executable judgments/orders imposing fulfilment of obligations upon parties and directing payment of compensation as well as damages under S. 31 of Punjab Consumer Protection Act, 2005---Final order of Consumer Court passed under S.31 of Punjab Consumer Protection Act, 2005, at the very least, pass the test of being a legally valid judgment/order depicting independent application of judicial mind upon critical aspects of a controversy---Pivotal issues were not determined by Consumer Court and there was no narrative/discourse available in the order about actual issue on the basis of which claim was preferred and allowed---High Court set aside order passed by Consumer Court as there was no discourse in the order about how the Court came to the conclusion and matter was remanded for decision afresh---Appeal was allowed accordingly.

Hafiz Abdul Waheed v. Mrs. Asma Jehangir and another PLD 2004 SC 219; Bakhtawar and others v. Amin and others PLD 1980 SCMR 89; Islamic Republic of Pakistan through Secretary Ministry of Interiror and Kashmir Affairs, Islamabad v. Abdul Wali Khan MNA former President of Defunct National Awami Party PLD 1976 SC 57; Pakistan Refinery Ltd., Karachi v. Barrett Hodgson Pakistan (Pvt.) Ltd. and others 2019 SCMR 1726; Messrs MFMY Industries Ltd. and others v. Federation of Pakistan through Ministry of Commerce and others 2015 SCMR 1550; Hyderabad Development Authority through M.D., Civic Centre, Hyderabad v. Abdul Majeed and others PLD 2002 SC 84; Mst. Sabahat Idrees and another v. Mst. Clare Benedicta Conville and 4 others 2007 MLD 1732 and Z.Z. Ahmad (Retd.) Deputy Inspector General of Police v. National Bank of Pakistan PLD 1991 SC 363 rel.

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

----S. 2 (14), O.XX, R.4 & O. XLI, R.31---Order and judgment---Necessary ingredients---Provision of reasons in a judgment/order is as necessary and imperative as water is for fish---Reasons inject life into a judgment/order and provide its basis---Non-provision of any reasons for allowing claim is conspicuous and stark---Even on such count alone judgment/order assailed.

Siemens Engineering and another v. Union of India and another AIR 1976 SC 1785; Jagtamba Devi v. Hem Ram and others (2008) 3 SCC 509 and Punjab Haryana High Court Commissioner of Income Tax v. Vikas Chemi Gum India" (2005) 196 CTR P H 123 rel.

Malik Muhammad Latif Khokhar and Muhammad Waseem Khan Jaskani for Appellant.

Respondent No.2 Ex parte vide order dated 17.1.2022.

2023 Y L R 166

[Lahore (Rawalpindi Bench)]

Before Ch. Abdul Aziz, J

NAEEM SHAH---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 2183-B of 2022, decided on 11th October, 2022.

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

----S.497---Foreign Exchange Regulation (VII of 1947), Ss. 5 & 23---Anti-Money Laundering Act (VII of 2010), Ss. 3 & 4---Penal Code (XLV of 1860), S. 109---Restriction on payments--- Money laundering---Abetment---Bail, grant of---Scope---Allegation against accused was that he was the owner of a hundi/hawala business---Manager of the office, who was arrested, had disclosed the name of accused and co-accused as owners---During investigation, a laptop was secured containing the record of hundi business but no reference to it was made either in the FIR or in the statements of witnesses recorded under S. 161, Cr.P.C. on the first day of registration of FIR---From the forensic analysis of the laptop some screenshots deciphered, which contained the names of some individuals along with certain amounts of money about which primarily an inference was drawn as proceeds of hundi/hawala---Concession of post arrest bail could not be withheld from an accused merely on the basis of inferences and presumptions, instead the prosecution must collect some confidence inspiring incriminating material reasonably connecting the accused with the commission of crime---Petition for grant of bail was accepted.

(b) Anti-Money Laundering Act (VII of 2010)---

----Ss. 3 & 4---Money laundering---Scope---For attracting the mischief of S. 4 of Anti-Money Laundering Act, 2010, the prosecution is primarily required to prove that the property is proceeds of crime.

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

----S. 497---Bail---Scope---In respect of an offence not falling within the prohibitory clause of S. 497, Cr.P.C., grant of bail is a rule and refusal an exception---Such a person can only be held disentitled to the concession of post arrest bail, if there exist some recognized exceptional circumstances.

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

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

----S. 497---Bail---Scope---For the limited purpose of bail, the lesser sentence is to be considered.

Arshad Hussain Yousafzai for Petitioner.

2023 Y L R 176

[Lahore]

Before Asim Hafeez, J

MAHMOOD KHAN and 3 others---Petitioners

Versus

BASHIR AHMED and another---Respondents

Civil Revision No. 1583 of 2010, decided on 31st December, 2021.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Limitation Act (IX of 1908), Art. 113---Specific performance of agreement to sell claiming that suit property was mortgaged with the Bank at the time of agreement; that conveyance would be executed upon redemption; that petitioners redeemed the property and attempted to alienate the property which fact came to the knowledge of respondent 3 days ago and respondents were constrained to file suit after 18 years of alleged agreement---Suit was decreed by appellate Court below---Petitioners contended that execution of alleged agreement was not proved; that evidence led was deficient/unconvincing; that material details qua alleged agreement i.e. date, time, and place of execution were conspicuously missing; that subsequent improvement by referring to evidence outside scope of pleadings would extend no assistance; that no evidence was led to show that property was redeemed as to attempt to justify filing of the suit after long-time---Validity---Respondent's plaint was silent as to date of the agreement and persons allegedly present at the time of negotiations---Agreement was allegedly executed in the year 1983, however suit was filed in September 2001---Respondent appearing as witness deposed that negotiations of sale were conducted 8 to 10 days before agreement before two witnesses which detail was missing in the plaint---One of the alleged witnesses of the negotiation was not produced which lead to adverse presumption---Respondent failed to produce any evidence to substantiate allegation of surreptitious redemption, which was cause of action and the sole ground for filling suit after 18 years---Suit was beyond the period of limitation---Delay of 18 years could not be condoned on the ground that property was mortgaged and right to seek enforcement was allegedly eclipsed/unavailable---No evidence was produced to prove the knowledge of redemption before 3 days of the filing of suit---No evidence was available as to prove the refusal of petitioner from performance of alleged agreement---Factum of possession was disputed by the petitioners which had obligated the respondent to prove their possession pursuant to alleged agreement---Co-purchaser did not appear and no plausible explanation was provided which amounted to withholding of best evidence---Revision petition was allowed accordingly.

Muhammad Sadiq and others v. Muhammad Mansha and others PLD 2018 SC 692 and Mst. Jaiwanti Bai v. Messrs Amir Corporation and others PLD 2021 SC 434 rel.

(b) Punjab Land Revenue Act (XVII of 1967)---

----S. 52---Mere placement of copies of Girdawari and shielding behind presumption of correctness, in respect thereof, was not enough when factum of possession was denied specifically.

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

----Art. 79---Executory agreement---Value of---Ownership could not be claimed on the basis of executory agreement enforcement whereof was sought and had to be proved before claiming rights therein.

Ch. Iqbal Ahmad Khan and Zeeshan Munawar Khan for Petitioners.

2023 Y L R 193

[Lahore (Bahawalpur Bench)]

Before Safdar Saleem Shahid, J

MUKHTAR AHMAD---Appellant

Versus

DISTRICT JUDGE and others---Respondents

Writ Petition No. 7446 of 2020, heard on 14th October, 2021.

Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Prompt or deferred dower--- Meaning--- Presumption of correctness attached to Nikahnama---Wife filed suit for recovery of dowry articles and dower through different suits---Both the suits were contested by the petitioner (husband)---Petitioner also filed separate suit for restitution of conjugal rights---Trial Court partially decreed the suit of wife and also decreed the suit for conjugal rights subject to the payment of dower---Husband filed appeal before Appellant Court, which was dismissed---Held, that there was no denial regarding the existence of Nikah---However, husband had shown his reservations regarding column No.16 of the Nikah Nama that land mentioned in that column was not settled as dower but it was written in the Nikah Nama just to show off---Amount of prompt dower was Rs.1000 which was mentioned in column No.13 of Nikah Nama which was payable on demand, whereas, in column No.16 of the Nikah Nama the property mentioned as 16 kanal was a deferred dower which could only be payable either in case of separation between the husband and wife or in case of death of the husband---Ten tolas gold ornaments were mentioned in Nikah Nama but nothing was mentioned whether the same was prompt or deferred, thus according to law it would be considered that 10 tola gold ornaments were to be paid on demand, because if the same had been paid by the petitioner as per his claim ,there must be mentioning of the same in the Nikahnama---Husband had admitted that Nikahnama was executed and all mentioned on Nikahnama in the column of witnesses had signed over the same---Witnesses who appeared in support of the husband's contentions had not shown any reservation about the genuineness of Nikahnama----However, husband had not produced any independent reliable confidence inspiring evidence regarding the property mentioned in column No.16 as just a show-off---Two witnesses produced for such purpose were closely related to the husband---Petitioner could have produced the Nikahkhwan who had solemnized the Nikah and had filled all the columns of Nikhanama to prove his version, if it was so settled---Version of the husband that it was for the lady to prove that the same was written as dower, was not a correct approach because Pert Nikah had the authenticity of correctness---If the petitioner had any reservation then it was for him to prove the same---Nikahnama was exhibited in evidence without objection, meaning thereby, all it's contents were correct and admissible to the husband---Trial Court although had not correctly interpreted the statement of the petitioner regarding handing over of gold ornaments ,yet the meaning of the sentence was that the husband had not proved with the evidence that gold ornaments were paid at the time of Ruksati to the wife---No receipt for the purchase of gold ornaments was produced, neither any independent evidence was produced in this regard that at the time of Ruksati gold ornaments was given to the lady as owner, as mentioned in column No. 16 of the Nikahnama---Word " " was not used in Islamic or Arabic dictionary for dower, so such word in Nikahnama might then be interpreted as deferred---Right interpretation of said entry was that such dower was payable but as deferred, which was a premature demand of the lady at present stage---So to that extent the prayer of the wife was not correctly decreed by Trial Court and Appellant Court---Constitutional petition was partly allowed to the extent that the dower of 10 tola gold ornaments had been correctly decreed in favour of wife and the dower of 16 kanal land would be treated as deferred dower and to that extent the claim of the wife was pre-mature and findings of Trial Court and Appellant Court were reversed, in circumstances.

Shabir Ahmad Malik for Petitioner.

Khurshid Ahmad Bhatti for Respondent No.3.

2023 Y L R 200

[Lahore (Multan Bench)]

Before Raheel Kamran, J

MUHAMMAD ZUBAIR---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No. 5318 of 2014, decided on 1st June, 2022.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Bar to further suit---Framing of issues---Scope---Not mandatory to frame issues and record evidence for the disposal of an application under S. 12(2), C.P.C., as the Court has to regulate its proceedings keeping in view nature of the allegations made in the application and adopt such mode as is in consonance with justice in the facts and circumstances of the case---Framing of issues in every case to examine merits of such application would frustrate the object of S. 12(2), C.P.C., which is to avoid protracted and time consuming litigation and to save the genuine decree holders from grave hardships, ordeal of further litigation, extra burden on their exchequer and simultaneously to reduce unnecessary burden on the Courts.

Ghulam Muhammad v. Ahmed Khan 1993 SCMR 662; Amiran Bibi and others v. Muhammad Ramzan and others 1999 SCMR 1334; Ms. Amina Bibi v. Nasrullah and others 2000 SCMR 296; Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others 2003 SCMR 1050 and Warriach Zarai Corporation v. F.M.C. United (Pvt.) Ltd. 2006 SCMR 531 ref.

Mian Tahir Iqbal for Petitioner.

Fayyaz Ullah Khan Lakhwera, Muhammad Khalid Farooq, Mian Ajmal Pervez, Assistant Advocate General, Punjab, with Zafar Inspector for Respondents.

2023 Y L R 203

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

Engineer IRFAN AHMAD QURESHI---Petitioner

Versus

UNIVERSITY OF ENGINEERING and others---Respondents

Writ Petition No. 2567 of 2016, decided on 13th September, 2022.

University of Engineering and Technology Taxila Act (XII of 1994)---

----S. 22(2)(xxii)--- Constitution of Pakistan, Arts. 3, 5(2), 25 & 199---Constitutional petition---Discrimination---Honorary degree, awarding of---Petitioner was PhD scholar who was aggrieved of refusal of University authorities to extend time for submitting his thesis---During pendency of petition, petitioner died and his father appeared on his behalf---Validity---Obedience to Constitution and law under Art. 5(2) of the Constitution was inviolable obligation of every citizen, including respondent/ University---Petitioner died and non-awarding of degree was exploitation under the provisions of Art. 3 of the Constitution---Due to unforeseen and unavoidable personal reasons, thesis could not be submitted within the stipulated time---Petitioner sought extension of time which was declined by Academic Council but in the same meeting extension was granted to similarly placed PhD students, for which respondent/University authorities had no satisfactory reply---Inaction of respondent/University authorities violated provisions of Art.25 of the Constitution---High Court directed Syndicate of University who had the authority/ mandate to confer honorary degrees as per S.22(2)(xxii) of University of Engineering and Technology Taxila Act, 1994, to consider case of petitioner for awarding honorary degree by providing proper hearing to all concerned---Constitutional petition was disposed of accordingly.

Mst. Fatima Faryad and others v. Government of Punjab and others 2020 CLC 836; National Bank of Pakistan v. Iftikhar Rasool Anjum and others 2017 PLC (C.S.) 453; Bahadur Khan and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and others 2017 SCMR 2066; Justice Qazi Faez Isa and others v. President of Pakistan and others PLD 2022 SC 119; National Commission on Status of Women through Chairperson and others v. Government of Pakistan through Secretary Law and Justice and others PLD 2019 SC 218; Syed Tahir Hussain Mehmoodi and others v. Agha Syed Liaqat Ali and others 2014 SCMR 637 and Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997 ref.

Kashif Ali Malik, Advocate Supreme Court with Barrister Dr. Waseem Ahmad Qureshi, Advocate Supreme Court for Petitioner.

Sajid Khan Tanoli, Deputy Attorney General and Asif Ikram, Assistant Attorney General.

Mirza Asif Abbas, Assistant Advocate-General.

Raja Waqar Ilyas for RDA.

2023 Y L R 222

[Lahore (Multan Bench)]

Before Shakil Ahmad and Muhammad Raza Qureshi, JJ

Mst. LALARUKH SAQLAIN and 3 others---Appellants

Versus

PUNJAB HEALTH DEPARTMENT through Secretary and 4 others---Respondents

Regular First Appeal No. 184 of 2013, heard on 10th May, 2022.

Land Acquisition Act (I of 1894)---

----Ss. 4, 18 & 54---Constitution of Pakistan, Art. 24---Acquisition of land---Compensation--- Potential value---Determination---Appellants/landowners were aggrieved of compensation determined by Referee Court---Validity---Acquisition process employed to deprive someone of his property, was an exception that was visualized by the Constitution---Process must be in consonance with conditions, parameters and manner as laid down in Art. 24(2) & (3) of the Constitution---Even if property of any person was taken over for a public purpose, the person being deprived of his property had to be given adequate, fair, just and due compensation---Provisions of Land Acquisition Act, 1894 had Constitutional backing as the same was covered under the Exception as contained in Art. 24(2) of the Constitution---Acquired land was located on main road, in the vicinity of major bypass road crossing and was situated near various residential colonies---Land in question possessed potential significance in future---Referee Court while determining/enhancing award amount from Rs.7,500/- to Rs.12,000/-, observed that appellants/land owners failed to place on record any valuation table existing at the time of publication of notification under S.4 of Land Acquisition Act, 1894 and provision of S.23(1) of Land Acquisition Act, 1894 had provided that in determining amount of compensation to be awarded of the land value of the land at the date of publication of notification under S. 4(1) of Land Acquisition Act, 1894 was to be considered---High Court modified judgment of Referee Court by enhancing compensation amount of acquired land of appellants/landowners from Rs.12,000/- per Marla to Rs.40,000/----Appeal was allowed accordingly.

Collector, Land Acquisition, Mardan and others v. Nawabzada M. Ayub Khan and others 2000 SCMR 1322; Province of Punjab through Collector, Attock v. Engr. Jamil Ahmad Malik and others 2000 SCMR 870; Government of Pakistan through Military Estate Officer, Abbottabad and another v. Ghulam Murtaza and others 2016 SCMR 1141; Air Weapon Complex through DG v. Muhammad Aslam and others 2018 SCMR 779; Federal Government Employees Housing Foundation (FGEHF), Islamabad and others v. Malik Ghulam Mustafa and others 2021 SCMR 201; Land Acquisition Collector and others v. Mst. Iqbal Begum and others PLD 2010 SC 719; Pakistan Burmah Shell Ltd. v. Province of N.W.F.P and 3 others 1993 SCMR 1700; Haji Muhammad Yaqoob and another v. Collector, Land Acquisition/Additional Deputy Commissioner, Peshawar 1997 SCMR 1670; Sarhad Development Authority N.W.F.P (Now KPK) through COO/CEO (Officio) and others v. Nawab Ali Khan and others 2020 SCMR 265; Iffat Jabeen v. District Education Officer (M.E.E.), Lahore and another 2011 SCMR 437; Ghulam Rasool through L.Rs. and others v. Muhammad Hussain and others PLD 2011 SC 119; Province of Punjab through Land Acquisition Collector and another v. Begum Aziza 2014 SCMR 75; Province of Sindh through Collector of District Dadu and others v. Ramzan and others PLD 2004 SC 512 and Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245 rel.

Syed Muhammad Ali Gilani for Appellants.

Malik Altaf Hussain Raan, Assistant Advocate General for Respondents.

2023 Y L R 236

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

GULL AKBAR KHAN---Petitioner

Versus

PAKISTAN RAILWAYS and others---Respondents

Writ Petition No. 899 of 2017, heard on 28th September, 2022.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Procurement by public authority---Scope---Divisional Superintendent, Pakistan Railways, published an advertisement for auction of dead and wind fallen trees--Auction was conducted; the petitioner was declared as highest bidder and he deposited a certain sum---In the meanwhile, a dispute arose between the Pakistan Railways and the Forest Department regarding ownership of the trees, but the Divisional Superintendent, Pakistan Railways issued letter to the petitioner directing him to deposit the remaining bid amount within seven days with further warning that otherwise the amount already deposited would be forfeited, which remaining bid money was not deposited and during pendency of present petition, the Pakistan Railways re-auctioned in favour of private respondent, whereupon the petitioner filed second writ petition for protection of his rights---Validity---Pakistan Railways had to first resolve issues of ownership of trees with the Forest Department, then had to remove apprehensions of the petitioner and, thereafter, notice should have been issued to the petitioner requiring him to deposit the bid amount---Conduct of the Pakistan Railways was not sustainable in the eyes of law---Constitutional petition was disposed of and the matter was referred to the Divisional Superintendent, Pakistan Railways with direction to look into it, redress the grievance of the petitioner by resolving the issue regarding ownership of trees with the Forest Department.

Major (Retd.) Pervez Iqbal v. Muhammad Akram Almas and others 2017 SCMR 831; National Bank of Pakistan v. Messrs Simnwa Polypropylene (Pvt.) Ltd. through Chief Executive and 6 others 2016 CLD 812 and Ahmad Iqbal v. Ministry of Energy (Petroleum Division) Islamabad and others 2020 MLD 1849 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Procurement by public authority---Scope---Any violation of law and unjust and partial practice of public functionaries which adversely affect the rights of the citizen for lawful participation of obtaining contracts through general tender would be unconstitutional and the jurisdiction under Art. 199 of the Constitution can be invoked in such cases.

Sargodha Textile Mills Limited v. Habib Bank Limited 2007 SCMR 1240 ref.

(c) Constitution of Pakistan---

----Art. 4---Rights of individuals to be dealt in accordance with law---Scope---Article 4 of the Constitution clearly states that it is inalienable right of every citizen to be treated in accordance with law and no action detrimental to the reputation, life and liberty shall be taken except as per law---Article 4 of the Constitution is an established practice that is deep rooted in the custom and usage of law and, therefore, it cannot be overlooked and disregarded by any Court.

Taj Wali Shah v. Bakhti Zaman 2019 SCMR 84 and Syed Tahir Hussain Mehmoodi and others v. Agha Syed Liaqat Ali and others 2014 SCMR 637 rel.

(d) Constitution of Pakistan---

----Art.10-A---Right to fair trial---Scope---Article 10-A of the Constitution provides right of fair trial and due process for determination of rights and obligations.

Federation of Pakistan through Secretary Finance, Islamabad and another v. E-Movers (Pvt.) Limited and another 2022 SCMR 1021 rel.

Sh. Zameer Hussain, Advocate Supreme Court for Petitioner.

Mirza Asif Abbas, Assistant Advocate-General with Abid Kokab, SDFO, Fateh Jang, Attock and Ms. Farzana Aziz, for Pakistan Railways.

Muhammad Sajid Khan Tanoli, Deputy Attorney General, Asif Ikram, Assistant Attorney General and Faheem Ahmad Chaudhry for Respondents.

2023 Y L R 250

[Lahore]

Before Farooq Haider, J

ABDUL JABBAR and 3 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Revision No. 22730 of 2017, heard on 1st October, 2021.

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

----S. 420---Dishonestly inducing delivery of property---Appreciation of evidence---Benefit of doubt---Scope---Accused persons were alleged to have made a (Charitable) institution for paying Rs.50000/- for the daughters' marriage, for children school fee and for medical treatment but for obtaining said amount an amount of Rs.15000/- had to be deposited as advance; when complainant and others asked for payment of promised amount, they were issued "Form" and told that the institution's team would come and deliver the amount at home, however, subsequently nothing was paid to affectees---Validity---No receipt containing signatures of accused persons showing receiving of alleged amount from any affected person was produced by the prosecution---"Form" issued to the complainant was not produced---Publications/advertisements as well as letter/form containing "Congratulations" were produced by the complainant to police and not recovered from possession of accused persons---When receiving of any amount/valuable security/property or anything by the accused persons through cheating and dishonest inducement from the complainant or anyone else had not been proved then basic ingredients constituting offence under S. 420, P.P.C. were missing in the case---Prosecution had failed to prove charge under S. 420, P.P.C.---Criminal revision was accepted and the accused persons were acquitted of the charge, in circumstances.

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

----S. 345---Penal Code (XLV of 1860), S. 420---Dishonestly inducing delivery of property---Compounding the offence---Scope---Perusal of S. 345, Cr.P.C. reveals that offence under S. 420, P.P.C. can be compounded with the permission of Court by "the person cheated".

(c) Criminal trial---

----Compromise--- Scope--- Partial compromise cannot be taken into consideration for acquittal.

Zahid Rehman v. The State PLD 2015 SC 77; Abdul Ghaffar and others v. The State 2015 SCMR 1064 and Muhammad Amin v. The State 2016 SCMR 116 ref.

Muhammad Rafique Zahid for Petitioners.

Ms. Nuzhat Bashir, Deputy Prosecutor General along with Tassaduq A.S.I. for the State

Adnan Abbas Gujjar along with Muhammad Akram (complainant of case) for the Complainant.

2023 Y L R 264

[Lahore]

Before Muhammad Amjad Rafiq, J

SAIF ULLAH---Petitioner

Versus

The STATE and 6 others---Respondents

Writ Petition No. 68262 of 2021, decided on 15th November, 2021.

Police Order, 2002---

----Art. 18-A(2)--- Criminal Procedure Code (V of 1898), S. 173---Penal Code (XLV of 1860), Ss. 324, 337-A (i), 337-F(iii), 148 & 149---Constitution of Pakistan, Art. 199---Constitutional petition---"Further investigation" and "re-investigation"---Distinction---Second change of investigation---Attempt to Qatl-i-Amd, Shajjah-i-Khafifah, Ghayr-Jaifah Mutafahimah and rioting armed with deadly weapons were alleged in FIR---Petitioner was aggrieved of order passed by authorities directing second change of investigation--- Validity--- Further investigation, was continuation of earlier investigation and not a fresh investigation or re-investigation to be started ab initio wiping out the earlier investigation altogether---Further investigation was done to find a concrete evidence or strong evidence against the person whereas re-investigation was done when case was on wrong track or convicted was found not guilty and criminal was on loose---First Information Report was registered on 26-12-2020 and after two successive investigations one accused was found involved whereas other four were found innocent and challan was put into the Court---Recommending second change of investigation by Board mentioned in its report that investigation was not conducted on right lines---No reasons were mentioned in the order for transfer of investigation which was the requirement of Art. 18-A(2) of Police Order, 2002, nor was slackness or inefficiency of earlier investigator pointed out and even action was not recommended against them---Question who made the fire, depended upon role assigned to accused in crime report which could only be determined through recording of evidence before Trial Court---If police had received any additional information in such respect at later stage it could possibly be placed before Trial Court through another report under S.173, Cr.P.C.---High Court set aside the order passed by authorities permitting second change of investigation---Constitutional petition was allowed in circumstances.

Hasil Baluch v. Deputy Inspector (Police) Crimes Karachi and 3 others 1983 PCr.LJ 2357; Muhammad Aslam v. Additional Secretary PLD 1987 SC 103; Nasira Surriya v. Muhammad Aslam 1990 SCMR 12; Riaz Hussain and others v. The State 1986 SCMR 1934; Ch. Muhammad Yaqoob and others v. The State 1992 SCMR 1983; Zeeshan alias Shani v. The State 2012 SCMR 428; Muhammad Younas and others v. I.G. Police and others 1999 PCr.LJ 163 and 1999 MLD 2276 ref.

Muhammad Shazib Riaz for Petitioner.

2023 Y L R 280

[Lahore]

Before Shehram Sarwar Ch., J

MUHAMMAD HAYAT and others---Appellants

Versus

The STATE---Respondents

Criminal Appeal No. 899-J of 2016 and Criminal Revision No. 170 of 2017, heard on 25th June, 2021.

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

----Ss. 302, 324, 452, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, house trespass, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Delay of one hour in lodging the FIR---Scope---Prosecution case was that the accused party made firing upon the accused party, due to which three persons were killed while three were injured---Motive behind the occurrence as alleged in the FIR was dispute of a plot between the parties---Record showed that in the incident three ladies lost their lives and three persons sustained firearm injuries---Distance between the place of occurrence and the police station was one kilo-metre---Matter was reported to the police through application of complainant and formal FIR was got registered---Medical examination of the injured persons was conducted on the same night at 2:30 a.m. to 3:10 a.m., respectively i.e. with a delay of about three hours after the occurrence---Facts and circumstances of the case suggested that the FIR was not registered at the time as mentioned in the FIR because son-in-law of complainant had stated in his cross-examination that he was with the complainant at the time of registration of FIR---First Information Report was registered at about 9/10 a.m. in the morning---Even the post-mortem examination of the dead bodies of deceased ladies was conducted at 1:30 p.m., 2:30 p.m. and 2:40 p.m. respectively, i.e. after about 13 to 15 hours of the incident---Such noticeable delay was normally occasioned due to incomplete police papers necessary to be handed over to the Medical Officer to conduct the post-mortem examination of the dead body of the deceased which happened only when the complainant and police remained busy in consultation and preliminary inquiry regarding the culprits in such cases of un-witnessed occurrence---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Irshad Ahmed v. The State 2011 SCMR 1190 and Nazeer Ahmed v. The State 2016 SCMR 1628 rel.

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

----Ss. 302, 324, 452, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, house trespass, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Ocular account---Scope---Prosecution case was that the accused party made firing upon the accused party, due to which three persons were died while three were injured---Record showed that the ocular account in the case had been furnished before the Trial Court by complainant and two injured, who were closely related to the injured as well as deceased of the case---Complainant in the FIR and before the Trial Court stated that the accused along with their co-accused fired at the deceased---Complainant narrated the specific seat/locale of injuries on their person---Scrutiny of prosecution evidence reflected the falsity of eye-witnesses as the occurrence was committed within a few minutes and it was humanly impossible to provide such minute details in such a photographic manner or to assign the specific role and furnish detailed description of the same, which would rather infer to falsely rope in the accused persons---Lodging of the FIR with such minutest details of the case ruled out the possibility of truthfulness---Narratives of the FIR suggested the exaggeration and improvements made by the eye-witnesses, admittedly inimical towards the 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.

Irfan Ali v. The State 2015 SCMR 840 rel.

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

----Ss. 302, 324, 452, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, house trespass, abetment, 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 accused party, due to which three persons died while three were injured---Record showed that there were material contradictions in the statements of all the witnesses of ocular account---Complainant stated that in his cross-examination that all the accused entered jointly in his room however, they separately fired at once---Firing which were made by the accused persons were received by all the persons who were present at that time---Injured witness had stated in her cross-examination that all the persons who were available in the room received injuries---Said injured witness again stated that her father and another person did not receive injury---All the accused persons entered into the room where the occurrence took place and all of them started incriminate firing---All the injured persons and deceased persons received firearm injuries in the respective cots on which they were sitting---Likewise other injured witness had stated in his cross-examination that all the accused persons suddenly entered into the room and immediately made indiscriminate firing upon the persons present in the said room---All the male and female persons who were present in the room received fire shot injuries---Injured witness in his examination-in-chief did not attribute any specific injury to the accused allegedly caused by them on the person of deceased as well as injured---Complainant had stated in his cross-examination that the accused indulged in firing from the distance of 2/3 feet each from the cots which were lying inside the room but the Medical Officers who furnished medical evidence did not observe any blackening, burning or tattooing around the wounds of the deceased as well as injured persons---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, 324, 452, 109, 148 & 149---Criminal Procedure Code (V of 1898), S. 161---Qatl-i-amd, attempt to commit qatl-i-amd, house trespass, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Delay of about more than sixteen days in recording the statements of witnesses by police---Scope---Prosecution case was that the accused party made firing upon the accused party, due to which three persons died while three were injured---Admittedly, the occurrence took place on 03.11.2012, whereas the statements of injured witnesses under S.161, Cr.P.C., were recorded on 19.11.2012 and 10.11.2012, respectively--- Credibility of a witness was to be looked with serious suspicion if statement of said witness under S.161, Cr.P.C., was recorded with delay without offering any plausible explanation---Appeal against conviction was allowed, in circumstances.

Muhammad Khan v. Maula Bakhsh and another 1998 SCMR 570 rel.

(e) Criminal trial---

----Witness---Injured witness---Scope---Merely the injuries on the body of a person would not stamp him/her a truthful witness.

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

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

----Ss. 302, 324, 452, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, house trespass, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Motive was not proved---Scope---Prosecution case was that the accused party made firing upon the accused party, due to which three persons died while three were injured---Motive behind the occurrence as alleged in the FIR was dispute of plot between the complainant and accused---Due to that revenge, the accused in consultation with each other committed the occurrence---No cogent/convincing evidence qua motive part of incident was produced by the prosecution during the trial---Moreover, no independent witness qua motive was produced during the course of investigation or brought in the witness box at trial---Prosecution had not been able to substantiate the alleged motive behind the occurrence and the same had rightly been disbelieved by the Trial Court---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, 324, 452, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, house trespass, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence at the instance of accused---Reliance---Scope---Prosecution case was that the accused party made firing upon the accused party, due to which three persons died while three were injured---Record showed that a pump action gun was recovered at the instance of accused, however, the same was immaterial because the report of Forensic Science Agency qua the said weapon was in the negative---No recovery was effected at the instance of co-accused persons during the course of investigation---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) Criminal trial---

----Medical evidence---Scope---Medical evidence might confirm the ocular account with regard to the receipt of injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death but it would not tell the name of the assailants.

Ata Muhammad and another v. The State 1995 SCMR 599 rel.

(i) Criminal trial---

----Benefit of doubt---Principle---If there was a 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.

Andaz Jilani Khan, Rai Tariq Saleem and Ijaz-ul-Hassan Mughal for Appellants Nos. 1 to 4.

Rai Ashfaq Ahmad Kharal for Appellant No. 5.

Ch. Muhammad Akram Tahir, District Public Prosecutor and Atif Khan, Deputy District Public Prosecutor for the State.

Khadim Hussain Sidhu and Rana Sarfraz Yousaf for the Complainant.

2023 Y L R 299

[Lahore]

Before Ch. Muhammad Iqbal, J

AMIR MANZOOR---Appellant

Versus

NAEEM JAVED and others---Respondents

E.F.A. No. 760 of 2013, heard on 15th November, 2021.

Civil Procedure Code (V of 1908)---

----O. XXI, R. 58---De-attachment of property---Plaintiff filed a suit for recovery against defendant which was ex-parte decreed by the Trial Court---Plaintiff filed execution petition for satisfaction of the decree wherein the suit property was attached by the Executing Court---Appellant filed an objection petition for de-attachment of the property on the basis that he had entered into an agreement to sell with the defendant quo the attached property--- Objection petition was dismissed by Executing Court---Held that, appellant filed suit for specific performance on the basis of agreement to sell which was decreed---Resultantly, possession of the attached property was handed over to the appellant and he filed execution petition for the registration of sale deed---Plaintiff during the pendency of the suit for recovery under O.XXXVII of the C.P.C did not file any application under O.XXXVII, R. 5 of the C.P.C. for the attachment of the suit property---Suit property was attached in June 2012, whereas the suit for specific performance filed by the appellant had already been decreed on 06.04.2012---Plaintiff, as per the judgment and decree of a Court of competent jurisdiction, was no more owner of the suit property, as such, the attachment order could not be made---Record showed that plaintiff also entered into an agreement to sell with the defendant in respect of the suit property on 17.06.2009---In the said agreement it was mentioned that plaintiff had paid ten million rupees as earnest money but surprisingly a cheque was given by defendant to plaintiff of the same amount and on the basis of said cheque plaintiff filed suit under O.XXXVII of the C.P.C---Said mode of transaction suggested that plaintiff was not interested to purchase the land---Agreement to sell in favour of appellant was also prior in time---Defendant filed petition under S.12(2) of the C.P.C. in the suit for specific performance of agreement to sell of the appellant which petition was dismissed by the Trial Court, Appellate Court and the High Court---Said decisions were not challenged any further which had attained finality---Appeal was allowed ,order passed by Executing Court dismissing the objection petition of the appellant was set aside and the objection petition filed by the appellant was accepted, in circumstances---Executing Court was to proceed further in accordance with the law.

Zafar Iqbal Mangan for Appellant.

Qamar Pervaiz Zia for Respondent No.1, Respondent No.2 ex-parte vide order dated 09.05.2016.

2023 Y L R 309

[Lahore (Multan Bench)]

Before Anwaar Hussain, J

Syed ABDUR RASHID through legal representatives and others---Appellants

Versus

Rana MUHAMMAD ANWER---Respondent

R.S.A. No. 8 of 2008, decided on 23rd December, 2021.

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

----Arts. 3, 17, 79 & 129(g)---Suit for specific performance of agreement to sell the property claiming that out of total consideration of Rs.840,000/-, earnest money amounting Rs.300,000/- was paid at the execution of agreement, whereas Rs.290,000 and Rs.150,000/- were paid through two checks and only liability of Rs.100,000/- was left---Trial Court dismissed the suit holding that plaintiff was entitled to receive the amounts paid to predecessor-in-interest of the defendants through cheques because payment of the same was proved though not in pursuance of the agreement---Appellate Court decreed the suit---Validity---Respondent in his plaint did not specify the date/time on which the alleged offer as to sale of the suit property was made by the predecessor of the appellants and the parties reached a consensus---Record showed that the offer and acceptance were purportedly made on the same date when the agreement was executed---Testimony of alleged broker who worked to negotiate/arrange the deal between the parties had gone beyond the pleadings inasmuch as he asserted that there were 3-4 rounds of negotiation between the parties to reach the consensus---Said broker was most unnatural witness as it would fly in the face of logic that the respondent involved a third person to finalize a deal between the respondent and predecessor-in-interest of the appellants even though the respondent was tenant thereof since 1984---Issuance of the stamp paper used for execution of the agreement had not been proved through the statement of the stamp-vendor and production of his register---Trial Court rightly observed that no sign/thumbmark was affixed at the back of the agreement, which could establish as to who purchased the same---Marginal witness being interested person (respondent's real brother) appeared before Court who remained silent in his examination-in-chief to the extent of amount other than the earnest money and deposed that the deal did not take place in his presence; that he was merely intimated by the respondent as to the deal and was asked to come for attesting the agreement---Contradictions existed in the statements of witnesses as to availability of the earnest money at the time of execution of agreement---Evidence adduced by the respondent indicated glaring contradictions, which propelled to the conclusion that the payment of earnest money had not been proved through preponderance of evidence---Alleged signatures at the back of the cheques were never got compared to ascertain whether the same were also that of predecessor-in-interest of the appellants---No independent/corroborative witness to the payment through cheques was available---Alleged scribe produced in witness box but name of the same was not reflected in the agreement as scribe---Non-production of the stamp vendor coupled with the abstinence/failure to produce the register where the issuance of the stamp paper was recorded, bearing signatures of the buyer of said stamp paper revealed that one of the best pieces of evidence as to who bought the stamp paper had been withheld by the respondent---Bare reading of the alleged agreement itself revealed that the same had been structured on the basis of reverse engineering---Appeal was allowed accord-ingly.

Rafique Ahmed through Legal Heirs and 10 others v. Muhammad Anwar 2003 CLC 1500; Muhammad Tariq and others v. Mst. Shamsa Tanveer and others PLD 2011 SC 151; Syed Muhammad Umer Shah v. Bashir Ahmed 2004

SCMR 1859; Mst. Saadat Sultan and others v. Muhammad Zahur Khan and others 2006 SCMR 193; Yaqoob Shah v. The State PLD 1975 Pesh. 205; Dilshad Begum v. Nisar Akhtar 2012 SCMR 1106; Sheikh Muhammad Muneer v. Mst. Feezan PLD 2021 SC 538; Sudhangshu Bimal Biswas v. MD Mustafa Chowdhury 1968 SCMR 213 and Sultan Muhammad and another v. Muhammad Qasim and others 2010 SCMR 1630 rel.

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

----S. 42---Contract Act (IX of 1872), S. 10--- Party seeking specific performance of agreement to sell was required to prove firstly that such agreement becomes a contract, enforceable at law, fulfilled certain basic requirements including offer, acceptance, presence of consideration and free consent of the parties; secondly, that the parties reached a consensus qua the sale of the suit property; thirdly, that (in case of issuance of the stamp paper used to reduce the sale transaction into writing) the agreement was proved by producing stamp paper vendor and his register in which it was recorded, establishing the serial number of the stamp-paper used in the transaction, date of issuance/sale of said stamp paper, purpose of sale of stamp paper and, more importantly, the name of the person to whom the stamp-paper was sold; fourthly, that the attesting witnesses were produced to prove the execution/ contents of the agreement; fifthly, that payment of the remaining amount was proved by producing the witnesses in front of whom the same was paid; and sixthly, that willingness to pay the balance amount of consideration at the time of institution of the suit was established.

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

----O. XLI, R. 31---Appellate Court, duty of---Appellate Court was duty bound to consider the evidence of both sides in its entirety and thereafter arrive at a finding.

Syed Muhammad Ali Gillani for Appellants.

Syed Athar Hassan Shah Bokhari for Respondent.

2023 Y L R 328

[Lahore (Multan Bench)]

Before Sadaqat Ali Khan and Shehram Sarwar Ch., JJ

MUHAMMAD YASIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.308-J of 2018 and Murder Reference No. 153 of 2016, heard on 8th September, 2021.

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

----Ss. 302(b) & 109---Qatl-i-amd, abetment---Appreciation of evidence---Sentence, reduction in---Ocular account supported by medical evidence---Scope---Accused was charged for committing murder of minor daughter of the complainant---Motive behind the occurrence was that cousin of complainant contracted marriage with the niece of accused against the wishes of her family, due to said grudge, accused committed the offence---Ocular account of the occurrence had been furnished by complainant and a eye-witness---Both the said witnesses absolutely had no grudge or ill-will to falsely implicate the accused in the case---Said witnesses were cross examined at length but their evidence could not be shaken during the process of cross-examination---Said witnesses corroborated each other on all material aspects of the case---Witnesses had also established their presence at the time of occurrence at the place of occurrence with their stated reasons---Evidence of the said witnesses was straightforward, trustworthy and confidence inspiring--- Discrepancies pointed out in the statements of the witnesses by the defence were minor and general in nature, occurred in every case when the witnesses (who were human being) were cross-examined after a long time of the occurrence as in the present case, were not fatal to the prosecution case---Medical evidence had been furnished by Medical Officer who during post-mortem examination observed injuries on the person of deceased attributed to accused which were ante-mortem in nature and was sufficient to cause death in ordinary course of nature---Medical evidence had fully supported the ocular account---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt---In the present case, it was not determinable as to what was the real cause of occurrence and as to what had actually happened before the occurrence which resulted into the incident---Conviction of accused in offence under S.302(b), P.P.C. for committing murder of the deceased was maintained but his sentence was altered from death to imprisonment for life, in circumstances---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b) & 109---Qatl-i-amd, abetment---Appreciation of evidence---Sentence, reduction in---Recovery of weapon of offence---Scope---Accused was charged for committing murder of minor daughter of the complainant---On arrival of the police at the place of occurrence, complainant produced snatched (from the accused) blood-stained Toki before Investigating Officer, who took the same into possession vide recovery memo---Report of Forensic Science Agency in that respect was positive---Investigating Officer stated in his cross examination that when accused was produced before him he was in injured condition, he, after providing him alternate clothes, took his blood-stained clothes into possession---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt---Not determinable as to what was the real cause of occurrence and as to what had actually happened before the occurrence which resulted into the incident---Conviction of accused in offence under S.302(b), P.P.C., for committing murder of the deceased was maintained but his sentence was altered from death to imprisonment for life, in circumstances---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b) & 109---Qatl-i-amd, abetment---Appreciation of evidence---Sentence, reduction in---Motive was not proved---Scope---Accused was charged for committing murder of minor daughter of the complainant---Complainant stated regarding motive of the occurrence that his cousin contracted marriage with niece of the accused against the wishes of her family---Said cousin had not been produced to establish that motive which was not believable---If evidence of motive was excluded from consideration, even then the prosecution had proved its case beyond shadow of doubt against the accused---In the present case, it was not determinable as to what was the real cause of occurrence and as to what had actually happened before the occurrence which resulted into the incident---Conviction of accused in offence under S.302(b), P.P.C., for committing murder of the deceased was maintained but his sentence was altered from death to imprisonment for life, in circumstances---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b) & 109---Qatl-i-amd, abetment---Appreciation of evidence---Mitigating circumstances---Quantum of punishment--- Scope--- Accused was charged for committing murder of minor daughter of the complainant---In the present case, it was not determinable as to what was the real cause of occurrence and as to what had actually happened before the occurrence which resulted into the unfortunate incident---Conviction of accused in offence under S.302(b), P.P.C. for committing murder of the deceased was maintained but his sentence was altered from death to imprisonment for life, in circumstances---Appeal was dismissed with said modification in sentence.

Mir Muhammad alias Miro v. The State 2009 SCMR 1188 and Zafar Iqbal and others v. The State 2014 SCMR 1227 rel.

Prince Rehan Iftikhar Sheikh for Appellant.

Rana Noor Hassan Naroo for the Complainant.

Ch. Muhammad Akbar, A.P.G. with Muhammad Amin, S.I. for the State.

2023 Y L R 333

[Lahore (Multan Bench)]

Before Sardar Muhammad Sarfraz Dogar, J

SHAHID RASOOL---Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Secretary Home Department, Lahore and 6 others---Respondents

Writ Petition No. 12655 of 2021, decided on 25th August, 2021.

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

----S. 3---Power to arrest and detain suspected persons---Scope---Petitioner challenged the detention of his brother ordered by Deputy Commissioner---Validity---Deputy Commissioner had issued the impugned order blindfoldly without having any sufficient and incriminating material against the detenue---Apart from registration of certain criminal cases, the Deputy Commissioner was not in possession of any other concrete and tangible material/evidence in support of his order---Preventive detention order was declared to be illegal, unlawful and issued without application of independent mind, hence, the same was set aside and struck down---Constitutional petition was allowed.

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

----S. 3---Power to arrest and detain suspected persons---Scope---Order under S. 3 of Punjab Maintenance of Public Order Ordinance, 1960, cannot be based on conjectures and surmises, rather it should be based on concrete and tangible evidence---Grounds on the basis of which detention order of person is issued/ passed, must have the support of sufficient cogent material and only thereafter, it would satisfy the issuance of preventive order---Furthermore, the material/evidence must be of such a nature and character to persuade and satisfy an ordinary prudent person to justify the order of preventive detention---One cannot be deprived of his liberty on the basis of flimsy/shaky and insufficient material/evidence.

PLD 2003 SC 442 and PLD 2016 Pesh. 89 rel.

(c) Punjab Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Constitution of Pakistan, Art. 9---Security of person---Power to arrest and detain suspected persons---Scope---Article 9 of the Constitution provides for the security of the person---Under S. 3 of the Punjab Maintenance of Public Order Ordinance, 1960, the authority which is issuing preventive detention order must satisfy itself that material/evidence produced before him is sufficient to justify the detention order, without it, the order would be violative of Art. 9 of the Constitution.

2004 MLD 1541 and 2004 PCr.LJ 1604 rel.

Kh. Qaiser Butt for Petitioner.

Azhar Saleem Kamlana, Addl. Advocate General with Ahmad Shehzad Deputy Commissioner, Multan for Respondent.

2023 Y L R 355

[Lahore]

Before Muzamil Akhtar Shabir, J

AHMAD BAKHSH---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SARGODHA and 9 others---Respondents

Writ Petition No. 36507 of 2022, decided on 13th June, 2022.

Civil Procedure Code (V of 1908)---

----S.12(2)---Specific Relief Act (I of 1877), S.9---Suit for possession---Grounds of fraud, misrepresentation and lack of jurisdiction could be agitated under S.12(2), C.P.C. and no ground beyond the same could be allowed---In the present case suit for possession under S.9 of the Specific Relief Act, 1877, was filed by plaintiffs against respondents out of which two respondents were real sons of the petitioner (applicant under S.12(2), C.P.C.)---Suit was dismissed by Trial Court---Respondents filed appeal before Appellate Court, which reversed the decision of the Trial Court and decreed the suit---Petitioner filed an application before Appellate Court under S.12(2), C.P.C. on the ground that petitioner had not been impleaded as a party in the suit, which application was dismissed by Appellate Court---Validity--- Petitioner had throughout been aware of the proceedings initiated against his real sons, with whom petitioner was residing and petitioner had been indolent in pursuing the matter despite the fact that petitioner's real son contested the same and petitioner could have filed an application for being impleaded as a party, if petitioner so desired---Mere claim of petitioner based on ownership of the property and not being impleaded as a party in the given circumstances of the case was not sufficient to set aside order of the Appellate Court on the grounds raised by petitioner as for the purpose of application under S.12(2), C.P.C, petitioner had to show that he was not impleaded as a party through fraud or misrepresentation or the court lacked jurisdiction to decide the matter, which was lacking in the present case---Counsel for the petitioner had tried to argue that the case of respondents was not made out even on merits and decree was liable to be set aside---Such argument might be a ground to challenge impugned order before higher forum but the same could not be made basis for setting aside a decree by filing an application under S.12(2), C.P.C., wherein only grounds of fraud, misrepresentation and absence of jurisdiction could be agitated and no ground beyond the same could be allowed---Other grounds raised by petitioner could be raised through other proceedings but not through application under S. 12(2), C.P.C.--- Title of petitioner to the suit property as claimed by petitioner did not require him to be impleaded as party to suit under S.9 of the Specific Relief Act, 1877 as the suit was required to be filed against persons who had dispossessed where as no such ground was raised by petitioner and it was also not the claim of the petitioner that the decree was obtained by plaintiff in collusion with petitioner's sons to deprive him of the possession of the property---Non impleading of petitioner as party, in the suit, for recovery of possession could not be held to be based on fraud and misrepresentation---Petitioner had also not been rendered remediless as he still had remedy of filing a suit for possession on the basis of title available to him, if he could establish the same---Constitutional petition was dismissed, in circumstances.

Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others 2003 SCMR 1050 and Subedar Sardar Khan through Legal Heirs and another v. Muhammad Idrees through General Attorney and another PLD 2008 SC 591 rel.

2023 Y L R 382

[Lahore]

Before Muhammad Tariq Nadeem, J

NAZIR AHMED---Petitioner

Versus

CAPITAL CITY POLICE OFFICER, LAHORE and 5 others---Respondents

Criminal Miscellaneous No. 68909-H of 2021, decided on 9th November, 2021.

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

----S. 491---Habeas corpus---Scope---Police Officer had appeared before the Court and had submitted detailed report, according to which complainant got recorded his supplementary statement against the alleged detenu for his involvement in a case FIR registered under S. 392, P.P.C.---Report further revealed that alleged detenu was arrested and his physical remand was obtained and the Judicial Magistrate directed the Investigating Officer to produce the accused before the Court on the date fixed---Validity---Record transpired that in supplementary statement complainant had not described any source qua the involvement of the alleged detenu in the case rather it had been mentioned that the complainant had come to know through reliable and different sources that the alleged detenu was involved in the case---No cogent and convincing evidentiary material was available against the alleged detenu on file---Record further showed that there was no date mentioned in any case diary when the alleged detenu was arrested by the police---Judicial Magistrate was under obligation to perform his duty in accordance with law because liberty of a person was involved in the case and it was incumbent upon Judicial Magistrate that while allowing the physical remand of the alleged detenu it was his prime duty to go through the evidentiary material collected by the police and presented before it but he overlooked that aspect of the matter and passed the remand order in mechanical manner, without observing the law on the subject---Thus, the order passed by the Judicial Magistrate for the physical remand of the alleged detenu was declared to be without lawful authority and the same was set aside---Petition filed under S. 491, Cr.P.C. was converted into S. 497, Cr.P.C. and the alleged detenu was admitted to post-arrest bail in circumstances--- With the said observations, the petition was disposed of.

Saeed Ahmad v. Station House Officer Police Station Saddar, Sangla Hill 2013 PCr.LJ 1240; Iftikhar Ali v. District Police Officer, Nankana Sahib and 2 others 2009 YLR 1971; Ishrat alias Shaista v. Station House Officer 2012 MLD 507; Abid Ali v. Safdar Gujjar, SHO and another 2005 YLR 1554; Muhammad Siddique v. Station House Officer, P.S. Sadar, Pakpattan 2010 YLR 2611; Arshad Aziz v. SHO 2009 YLR 1055; Noor Muhammad v. The State 1999 MLD 1986; Mst. Miran Mai v. Station House Officer, CIA, Multan PLD 2001 Lah. 459; Muhammad Asghar v. SHO and others 2002 YLR 172; Rai Ghulam Abbas v. SHO 2002 YLR 170; Mrs. Inam ul Haq v. Director Anti-Corruption, Lahore and another 1998 PCr.LJ 1117; Sharman Bibi v. Muhammad Latif and 4 others 1996 PCr.LJ 1720 and Farzand Ali Shah v. S.H.O. of Police Station City, Muzaffargarh 1995 PCr.LJ 1076 rel.

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

----S. 154---First Information Report, registration of---Scope---Mere registration of FIR was not necessary for the arrest of accused until and unless sufficient incriminating material was available against him.

Khizar Hayat v. Inspector General of Police Punjab, Lahore PLD 2005 Lah. 470; Muhammad Bashir v. SHO Okara Cantt, and others PLD 2007 SC 539; Haider Ali and another v. DPO Chakwal and others 2015 SCMR 1724; PLD 2018 SC 595 and Shahzada Qaiser Arfat alias Qaiser v. The State and another PLD 2021 SC 708 rel.

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

----S. 167---Physical remand of the accused, grant of---Scope---Physical remand of an accused in a criminal case could only be granted when sufficient incriminating material was available which connected him with the commission of crime.

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

----S. 161---Supplementary statement---Scope---Supplementary statement could not be equated with the FIR.

Khalid Javed and another v. The State 2003 SCMR 1419; Syed Muhammad Firdaus and others v. The State 2005 SCMR 784; Abid Ali alias Ali v. The State 2011 SCMR 161; Asfand Yar Khan v. The State and another 2020 SCMR 715 and Lal Marjan and another v. Islam Gul and others 2021 SCMR 301 rel.

Mian Intizar Hussain Mahar for Petitioner.

2023 Y L R 420

[Lahore]

Before Rasaal Hasan Syed, J

MUSHTAQ AHMED---Appellant

Versus

ISHFAQ AHMED and others---Respondents

Writ Petition No. 75382 of 2021, heard on 24th March, 2022.

Punjab Rented Premises Act (VII of 2009)---

----S. 15--- Eviction--- Improvement beyond pleading at evidence stage---"Landlord", definition of---Default in payment of rent; unauthorized changes in the nature/character of property and requiring same for personal use/ occupation---Respondent filed eviction application alleging that he purchased the property through a registered sale-deed that petitioner (being real brother of the respondent)got the property on rent from respondent on the basis of oral tenancy agreement that possession was handed over by respondent to the petitioner as tenant; and that all utility bills of the premises used to come in the name of previous owner of property---Petitioner controverted that the respondent had concealed the facts in the eviction petition; that petitioner was owner-in-possession of the property to the extent of his share as all the legal heirs were the owners as per their respective shares in the property; that two suits (i.e. for partition and for declaration of benami transaction) were pending in the competent court of law inter se the parties; and that relationship of landlord and tenant did not exist between the parties---Mother of respondent appeared and claimed that the property had been given to her by her son; that she had been renting out the property; that she inducted the petitioner as a tenant along with other tenants and that she had been receiving the rent till the date of default---Respondent's application for ejectment was dismissed by Special Court (Rent)---In appeal there against, District Court observed that she was included in the definition of "landlady" and could seek eviction of the petitioner, hence, allowed the eviction of petitioner---Petitioner contended that no one could be permitted to produce evidence contrary to what had been pleaded nor could any case be set up on the basis of evidence for which no foundation was placed in the pleadings---Held, that ejectment application was signed/verified by the respondent himself which was supported by his affidavit wherein the contents of the ejectment application were reproduced and were verified on oath---Affidavits of two witnesses also supported the version of the application---Ejectment application had not given impression that the respondent's mother was ever given the premises; or was vested with the authority to rent out the same or to receive the rent and induct tenants; or that she had ever acted under instructions and with authority from respondent as a rent collector---Statement of mother was contradictory in the context of the affidavit and the same did not support the stance of the respondent in the ejectment application either---Respondent failed to produce any evidence in support of his own case---Before introducing ejectment application, the respondent sent a notice to the petitioner in which he did not take the stance of any indulgence of his mother in the matter of renting out the property or of receiving rent from the petitioner---Although, the concept of landlord included a person who had been authorized to rent out the property or who had been acting as rent collector under instructions/permission of the landlord, such evidence could only be accepted if the case was so pleaded in the ejectment application---Evidence could not be allowed or led beyond the pleadings and the case set up in the pleadings could not be improved at the stage of evidence---Order of the appellate court, therefore, could not be allowed to remain in field to that extent---Respondent never appeared in the witness-box nor was any document showing delegation of authority by respondent produced---Pleadings were never amended to raise such a plea---Constitutional petition was allowed accordingly.

Faizan Shabbir v. Shaikh Abdul Wahab through Attorney and 2 others PLD 2019 Sindh 559; Abdul Ghani through L.Rs. v. Messrs Caltex Oil Pakistan Limited 2010 SCMR 771 and Afzal Ahmad Qureshi v. Mursaleen 2001 SCMR 1434 rel.

Khalid Jamil for Petitioner.

Mubashir Rehman Chaudhary for Respondent No. 1.

2023 Y L R 431

[Lahore (Multan Bench)]

Before Muhammad Raza Qureshi, J

MUHAMMAD NAZEER---Appellant

Versus

GHULAM MUSTAFA---Respondent

Civil Revision No. 1071 of 2018, decided on 4th October, 2021.

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

----O.XVI, R. 1---Summons to attend to give evidence or produce documents---Summoning witnesses other than those mentioned in list of witnesses---Good cause---Inadvertent omission---Scope---Petitioner/Plaintiff filed an application for summoning of witnesses by pleading that evidence of the said witnesses was necessary for just decision of the case---Names of said witnesses were not mentioned in the list of witnesses and the only cause disclosed in the application was an inadvertent mistake---Trial Court dismissed the application for summoning the witnesses--- Validity--- Order XVI, R. 1(2), C.P.C., provided that the party could only call those witnesses which it had proposed to call--- Specific prohibition was placed, preventing a party to call the witnesses and even to produce witnesses other than those whose names were mentioned in the list required to be filed under O. XVI, R. 1(1), C.P.C.---Said provision was a mandatory provision of law as it entailed serious consequences of precluding a party from calling, through aid of Court, or even to produce the witnesses if their names did not appear in the requisite list---Delinquent party was allowed to make up its default and seek indulgence of the Court to summon and produce the witnesses but only after meeting and fulfilling the condition of good cause for the omission of the witnesses from the list---Inadvertent mistake was a lame excuse and did not appeal to judicious conscience or satisfy the mandate of law---Revision petition was dismissed.

Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255; Mst. Safeer Begum and others v. Additional District Judge and others PLD 2011 Lah. 14 and Rana Taleh Muhammad Khan and another v. Additional District Judge, Sheikhupura and 12 others PLD 1979 Lah. 145 ref.

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

----O. XVI, R. 1---Summons to attend to give evidence or produce documents---Summoning witnesses other than those mentioned in list of witnesses---Scope---Court is bound to record reasons for a permission to call or produce witnesses other than those mentioned in the list of witnesses---Court can only record reasons for permission if the subsequent application exhibits good cause for an earlier delinquency---Wisdom of public policy and law in this regard is that an adversary should not be taken by surprise in the course of trial and the parties before the commencement of trial, must be aware and should be fully prepared as to what kind of evidence is expected to be given by the witnesses of the opposite side, so that they can make necessary preparation for the cross-examination---Wisdom of law also targets to prevent the concoction and fabrication of evidence and to make up the litigants during the course of trial, meaning thereby to bind the parties to such genuine evidence which is available to them at the time of initiation of the trial---Intention of the legislature is to curb a situation where party to the suit should not subsequently fudge witnesses to make up their deficiencies.

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

----O. XVI, R. 1---Summons to attend to give evidence or produce documents---Summoning witnesses other than those mentioned in list of witnesses---Good cause---Scope---No hard and fast rule and absolute criteria can be set forth as benchmark to test if a case of omission to file the list of witnesses or a name in such list is on account of "good cause" as it depends upon the facts of each case, however, the party in default has to show a legally sufficient reason, why a request should be granted or its inaction/ omission should be excused---Good cause should appeal to judicial conscious of the Court with justified reasons, as a party in default cannot as a matter of right or as a matter of course, without assigning any good cause for the omission ask for calling the witnesses to be summoned or to be produced only on account of a lame excuse and reasons and bald assertion.

2023 Y L R 452

[Lahore]

Before Shahid Bilal Hassan, J

ZAHOOR AHMED---Appellant

Versus

ZAFAR ABBAS and another---Respondents

Civil Revision No. 232332 of 2018, decided on 31st January, 2022.

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

----S. 12(2)---Qanun-e-Shahadat (10 of 1984), Art. 114---Promissory estoppel---Suit for specific performance and permanent injunction---Suit was dismissed as withdrawn on the basis of statement recorded by the petitioner/ plaintiff---Petitioner filed application under S.12(2), C.P.C., for setting side said dismissal/withdrawal order and restoration of the suit for deciding the same on merits---Application was contested by the respondent and consequently dismissed by the Trial Court---Petitioner contended that compromise was effected inter se the parties and in pursuance of the same, the petitioner had withdrawn the suit, but the respondents stepped back of the said alleged compromise---Validity---Petitioner filed appeal against dismissal of application under S. 12(2) of Civil Procedure Code, 1908, which was treated as revision petition and was converted into Constitutional petition---Petitioner had appended with his application affidavits of the witnesses in order to show that fact of alleged compromise---Such was a factual controversy which could not be decided summarily without framing issues and recording evidence, especially when the petitioner's application was adorned with affidavits of the witnesses---After the alleged out of Court settlement, the parties could not go aside and the petitioner could only prove the allegation of respondent's stepping back from compromise by leading evidence---Constitutional petition was allowed, application was deemed to be pending before the Trial Court and the Trial Court was directed to decide the application after framing issues and recording evidence.

Pakistan through Ministry of Finance Economic Affairs and another v. Fecto Belarus Tractors Limited PLD 2002 SC 208 and Azra Riffat Rana v. Secretary, Ministry of Housing and Works, Islamabad and others PLD 2008 SC 476 rel.

(b) Constitution of Pakistan---

----Art. 10A---Opportunity to prove case through evidence---Each party should be provided with open field to prove his stance by leading evidence, obviously, by adhering to the procedural law i.e. Qanun-e-Shahadat, 1984 and Civil Procedure Code, 1908, in civil nature cases.

Ms. Kiran Bashir for Petitioner.

2023 Y L R 497

[Lahore (Bahawalpur Bench)]

Before Safdar Saleem Shahid, J

Mst. SHARAM ELLAHI---Appellant

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petitions Nos. 3332 and 3333 of 2021, decided on 11th October, 2021.

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

----Ss.12, 25 & 47---Family Courts Act (XXXV of 1964), S.14(3)---Welfare of minors---Father as a natural guardian---Scope---Res judicata, non applicability of---Petitioner being maternal grandmother filed application before Guardian Judge for custody of minors, who were residing with the petitioner---Petitioner also filed application for permanent injunction regarding the custody of minors---Respondent (father) contested the application before Guardian judge for custody of minors along with application of interim custody of the minors---Guardian Court dismissed the application of the petitioner, and, accepted the application of respondent---Petitioner filed appeal before Appellate Court---Appellate Court dismissed appeal of the petitioner---Contention of father was that maternal grandmother had no lien to file the application in presence of real father---Validity---Father was natural guardian of the minors and he could look and take care of the welfare of the minors in a better way, when specifically there was no allegation of the character or any other negative object/act which was necessary to refuse the real father for the custody of minors---Order under S.12 of the Guardians and Wards Act, 1890 was not mentioned under the appealable orders as provided in S. 47 of the Act---Application for the custody of minors under S.25 of the Act, was still pending before the Guardian Court---As such there was no ground to interfere in order passed by Guardian Judge---Appeal against interlocutory order under S.12 of the Guardians and Wards Act, 1890, is not maintainable---No bar existed for repeating the applications for interim custody before the Guardian Court, if new grounds are available because such practice is not contrary to law as well as principle of res-judicata, as interim orders relating to the minors are tentative and with the material change in the circumstances, the Guardian Court can always be moved for modification of the orders to promote the welfare of the minors---High Court declined to interfere in the order of Guardian Judge, being interim in nature---High Court observed that final custody of the minors will be determined while deciding the application under S. 25 of the Guardians and Wards Act, 1890---Constitutional petitions were dismissed.

Nasir Raza v. ADJ, Jhelum and another 2018 SCMR 590 rel.

Maliha Hussain v. Additional District Judge-V and another 2017 MLD 485; Mst. Kaneez Akhtar v. Abdul Qadoos and 2 others 2005 MLD 828; Javed Irfan v. Additional District Judge 2007 MLD 1089; Nasir Raza v. Additional District Judge, Jhelum and another 2018 SCMR 590; Tassadaq Nawaz v. Masood Iqbal Usmani and others PLD 2018 Lah. 830 and Syed Saghir Ahmad Naqvi v. Provinvce of Sindh through Chief Secretary, S&GAD, Karachi and another 1996 SCMR 1165 distinguished.

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

----S.14(3)---Guardians and Wards Act (VIII of 1890), Ss. 12, 25 & 47---Appeal against interlocutory order---Interlocutory order/interim order passed by the Family Court is not subject to revision or appeal or review---Provision of revision or appeal has been given to the final order of the Family Court---Under S.14(3) of the Family Courts Act, 1964, no appeal or revision lies against interim order passed by the Family Court.

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

----S. 14(3)---Guardians and Wards Act (VIII of 1890), Ss. 12, 25 & 47---Constitution of Pakistan, Art. 199---Constitutional jurisdiction of High Court--- Scope--- Interference at the interlocutory stage should be avoided by the High Court in constitutional jurisdiction, more particularly when the legislatures have not provided any appeal against interlocutory orders in relevant statutes--- Under, the constitutional jurisdiction such right should not be allowed to be exercised.

Syed Saghir Ahmad Naqvi v. Provinvce of Sindh through Chief Secretary, S&GAD, Karachi and another 1996 SCMR 1165 rel.

Jamil Hussain Joiya for Petitioner.

Abdul Jalil Khan for Respondent No.4.

2023 Y L R 509

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

MUHAMMAD MUMTAZ HUSSAIN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No. 2516 of 2013, decided on 6th September, 2022.

Family Courts Act (XXXV of 1964)---

----S. 5---Divorce---Proof---Maintenance allowance---Concurrent findings of facts by two Courts below---Petitioner/husband was aggrieved of judgments and decrees passed by two Courts below fixing maintenance allowance of respondent/ wife and minor children---Plea raised by petitioner/husband was that he had divorced respondent/wife--- Validity---High Court in Constitutional jurisdiction refrained from interfering in findings of fact recorded by two Courts below, as they were not contrary to record nor arbitrary or whimsical---Bald assertions and no specific instance was brought to the notice of Court that could be regarded as case of misreading or non-reading of material evidence having direct and decisive bearing on the issues causing miscarriage of justice---Both the Courts below exercised jurisdiction vested in them without violating any principle governing assessment and appraisal of evidence---Constitutional petition was dismissed, in circumstances.

Muhammad Bashir Ali Siddiqui v. Mst. Sarwar Jahan Begum and another 2008 SCMR 186; Muhammad Sajjad v. A.D.J. and others 2022 CLC 729 and Muhammad Asif v. Mst. Nazia Riasat and 2 others 2018 CLC 1844 distinguished.

Mst. Farah Naz v. Judge Family Court, Sahiwal and others PLD 2006 SC 457; Lt. Col. Nasir Malik v. Additional District Judge, Lahore and others 2016 SCMR 1821 and Waqar Haider Butt v. Judge, Family Court and others 2009 SCMR 1243 rel.

Sardar Abdul Raziq Khan for Petitioner.

2023 Y L R 532

[Lahore (Bahawalpur Bench)]

Before Safdar Saleem Shahid, J

NOOR MUHAMMAD---Appellant

Versus

Mst. UMAR WADI and others---Respondents

Civil Revision No. 466/BWP of 2016, decided on 14th December, 2021.

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

----O. XLI, R. 23---Gift---Proof---Judgment of Appellate Court---Scope---Suit for declaration was filed by the respondent alleging that her father/deceased was paralyzed and was living with the petitioner (only son), hence, the deceased was under the influence of the petitioner and she sought 1/5th share out of the estate of her father---Suit was concurrently decreed---Petitioner contended that Appellate Court had not complied with the rules for passing the judgment in appeal and violated the rules framed under O. XLI, C.P.C.; that both the Courts below had not determined the time of deceased's death and also had not considered the statement of witness who categorically stated that the deceased had died about 07 years after attestation of impugned gift mutations; that no particular fraud was pointed out; that question of misrepresentation / non-delivery of possession had not been challenged/ proved; that the deceased predecessor was not suffering from any disease and he was not mentally paralyzed; and that entries of mutations were duly incorporated in record of rights---Validity---First appellate court had discussed all the relevant factors which were available in the evidence of the parties even the documents had been discussed by the first Appellate Court while deciding the point of controversy in between the parties---Appellate Court had to decide the controversy between the parties and there was no need to decide each and every issue by the Appellate Court---Where Appellate Court recorded its findings on all the points raised before it without discussing the issues separately, it could not be said to have committed any illegality/error---Appellate Court had critically examined all the evidence on record, i.e. oral/ documentary evidence and had recorded the judgment on the basis of the same---Appellate Court had appraised the mandate of law, thus, the impugned judgment was qualified to be called "judgment"---As fraud had been alleged, it was the responsibility of the petitioner being beneficiary to prove that whether gift mutation was validly sanctioned---Respondents were real sisters of the petitioner and were privileged for being Parda Nasheen ladies---Lady who claimed to be illiterate appeared in witness box which fact was also admitted fact on record---Lady was detained in the house and was recovered on the order of the court---No explanation for such detention was provided by the petitioner and inference could be drawn that she was illegally detained, in order to prevent her from filing/agitating her claim---Proof of delivery of possession under the said mutation had not been brought on record---Revision petition was dismissed accordingly.

Naimat Khan and others v. Hamzullah Khan and others 2006

CLC 125 and Afsar Zaman and others v. Ayub Khan and others 2007 YLR 818 rel.

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

----O. XLI, R. 23---Appellate Court---Remand--- Principles--- Remand was not to be ordered lightly where the case could be decided by the appellate court itself---Where the evidence on record was sufficient to dispose of the case by the appellate court, the case should not be remanded.

Paramatha Nath Chowdhury and 17 others v. Karim Mondal and 3 others PLD 1965 SC 434; Fateh Ali v. Pir Muhammad and another 1975 SCMR 221 and Nasir Ahmad and another v. Khuda Bakhsh and another 1976 SCMR 388 rel.

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

----S. 2(9) & O. XLI, R. 23---"Judgment"---Essentials---Original and appellate court's judgment---Scope---Term "judgment" meant judicial decision of a court/judge---"Judgment" needs not necessarily deal with all matters in issue in the suit---Essential element of judgment was that there should be statement of grounds for decision---Most important ingredient of a valid judgment was the result/reasons/grounds of the decision because the validity of the judgment was to be seen from the reasoning and the same was to be challenged by the aggrieved party---Trial Court had to decide each/every issue, whereas, the Appellate Court was not required to record findings issue-wise---Sufficient for the Appellate Court to deal with all issues which mattered for disposal of the controversy accepting those abandoned by the appellants.

Ahmad Mansoor Chishti for Petitioner.

Aejaz Ahmad Ansari for Respondent No.1.

Ms. Ammara Tasneem Bhutta for Respondent No.2.

Tariq Mahmood Khan and Mian Muhammad Shahid Akhtar for Respondent No.3.

2023 Y L R 564

[Lahore]

Before Aalia Neelum and Farooq Haider, JJ

MUHAMMAD IFTIKHAR---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 40009 of 2019, heard on 11th October, 2021.

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

----Ss. 8, 9, 11-F(5), 11-H, 11-N, 11-I & 11-J---Prohibition of acts intended or likely to stir up sectarian hatred, membership, support and meetings relating to a proscribed organization, funding arrangements---Fund raising---Appreciation of evidence---Benefit of doubt---Accused was charged for collecting money for the banned organization being its active member---Admittedly, no specific evidence, either oral or documentary, had been placed, proved or relied on record which could show that the accused was member of the banned organization or had any proximate or otherwise nexus with that organization---Just because a handful of police official of CTD had given a tag of member of banned organization to the accused, that did not become a conclusive proof of accused being member of banned organization---No evidence to show that the accused did act of the nature---More serious the offence alleged, higher shall be the quality of evidence required to convict the accused---Appreciating the evidence brought by the prosecution, it was found that neither in the depositions of either of the four witnesses nor in the form of any documentary evidence, it had come on record that the accused was indulging in terrorism or was part of any such activity---Admittedly, accused had not any terror or criminal history of any sort and he had absolutely clean antecedents---Case of prosecution was not that the accused was directly or indirectly involved in any terrorist act prior to his apprehension in the case---In such circumstances it was abundant duty of the prosecution to collect legally admissible evidence to show that the accused was member of banned/ proscribed organization---Prosecution had not been able to bring on record any evidence qua commission of offence punishable under Ss. 11-H, 11-I & 11-J of the Anti-Terrorism Act, 1997---Circumstances established that the prosecution had not been able to prove the guilt of the accused beyond shadow of doubt through unimpeachable evidence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 8, 9, 11-F(5), 11-H, 11-N, 11-I & 11-J---Prohibition of acts intended or likely to stir up sectarian hatred, membership, support and meetings relating to a proscribed organization, funding arrangements---Fund raising---Appreciation of evidence---Benefit of doubt--- Intelligence sources--- Scope---Accused was charged for collecting money for the banned organization being its active member---Prosecution claimed that on the basis of intelligence sources, decoy witness was sent to the place where accused was fund raising but admittedly it was neither reduced into writing in the form of any Daily Diary entry nor any document or technical surveillance report was obtained, placed or proved on record---Circumstances established that the prosecution had not been able to prove the guilt of the accused beyond shadow of doubt through unimpeachable evidence---Appeal against conviction was allowed in circumstances.

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

----Ss. 8, 9, 11-F(5), 11-H, 11-N, 11-I & 11-J---Prohibition of acts intended or likely to stir up sectarian hatred, membership, support and meetings relating to a proscribed organization, funding arrangements---Fund raising---Appreciation of evidence---Benefit of doubt---Decoy witness---Scope---Accused was charged for collecting money for the banned organization being its active member---Decoy witness arranged by complainant could not be said to be a fully independent witness---Witness who paid tainted money to the accused and received receipt and a book became decoy witness---Witness arranged by the police preparatory to trap the accused could not be treated equally by the court with the eye-witness---Even complainant had not deployed shadow witness to hear the conversation between the decoy witness and the accused---Decoy witness had not stated as to how he identified the accused---Complainant and decoy witness had not stated that the description of the accused was given by the secret informer to them or they already knew the accused---Investigating Officer had not collected any material revealing that the accused was distributing any written material nor as to how many books were printed and paid for by the accused---From the prosecution evidence it revealed that book was recovered from the black bag of the accused---Whereas, the book received by decoy witness from the accused and handed over by him to complainant was not produced before the court---As only one book recovered from the bag of the accused was produced before the court---Investigating Officer had not collected any material to establish that the accused distributed book to any other person or persons in any manner whatsoever---Circumstances established that the prosecution had not been able to prove the guilt of the accused beyond shadow of doubt through unimpeachable evidence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 8, 9, 11-F(5), 11-H, 11-N, 11-I & 11-J---Prohibition of acts intended or likely to stir up sectarian hatred, membership, support and meetings relating to a proscribed organization, funding arrangements---Fund raising---Appreciation of evidence---Benefit of doubt---Safe custody of recovered articles---Scope---Accused was charged for collecting money for the banned organization being its active member---Complainant and Investigating Officer deposed during his court statement that he had handed over three sealed parcels to the moharrar---However, Moharrar was not examined and therefore also crucial link evidence had not been completed by the prosecution---No explanation was furnished for that failure to establish safe custody of recovered articles from time of the seizure at 8:20 P.M. till its production in the Trial Court---Mere oral evidence of the prosecution witnesses i.e. complainant and Investigating Officer did not discharge the heavy burden of responsibility, which lay on the prosecution---Circumstances established that the prosecution had not been able to prove the guilt of the accused beyond shadow of doubt through unimpeachable evidence---Appeal against conviction was allowed, in circumstances.

(e) Criminal trial---

----Benefit of doubt--- Principle---Whenever prosecution come up with a case which was full of doubts and was unbelievable, the benefit would always be given to the accused---Accused was presumed to be innocent until he was found guilty---Burden of proof that accused was guilty, is on the prosecution and that the prosecution had to establish its case beyond all reasonable doubts.

Javed Iqbal Malik for Appellant.

Humayoun Aslam, D.P.G. and Mirza Dawood Baig, Inspector-CTD for the State.

2023 Y L R 585

[Lahore (Rawalpindi Bench)]

Before Sadiq Mahmud Khurram, J

HASNAT AHMED---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 215 and Criminal Revision No. 61 of 2020, heard on 17th February, 2021.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Non-availability of justification for the presence of accused at the place of occurrence---Chance witnesses---Scope---Accused was charged that he and co-accused committed murder of the brother of the complainant---Motive for the commission of crime was that few days before the incident deceased had a quarrel with accused---Record showed that the whole prosecution case revolved around the statements of two witnesses---Deceased was the brother of said two witnesses and admittedly they were not the residents of the place of occurrence---Scaled site plan of the place of occurrence and the rough site plan, neither showed any house nor any shop nor any temporary place of residence belonging to eye-witnesses---Both the witnesses in circumstances, could be termed as chance witnesses---Said witnesses failed to prove the reason for them to be present at the place of occurrence, at 12:10 a.m. in the night---Said witnesses claimed that they along with their deceased brother had gone to a jungle in search of their cattle which had not returned and when they were returning from the jungle, on a path back to their residence, they witnessed the occurrence---According to the witnesses, they had left their residence at about 9.00 p.m. in search of the cattle whereas they witnessed the occurrence at about 12:10 a.m. in the night---Complainant during cross-examination admitted that he had not mentioned the number of the cattle which had gone missing in his oral statement--- Investigating Officer of the case, stated that during the investigation of the case eye-witnesses did not show him the cattle which had gone missing and for the search of which the said witnesses had proceeded from their residence---Another Investigating Officer of the case also stated during cross-examination that none of the witnesses told him about the number of the cattle which had gone missing and for whose search the witnesses had proceeded from their house---Furthermore, complainant stated during cross-examination that there was only one passage leading to the jungle and the witnesses were returning to their residence using the said path when they witnessed the occurrence---Investigating Officer of the case stated that in the rough site plan of the place of occurrence as prepared by him he had not shown any passage leading from the jungle to the place of occurrence, contrary claim of both the witnesses, who had stated that when they were returning from the jungle on a path towards their own house, they witnessed the occurrence---Draftsman also admitted during cross-examination that he had not shown any passage in the scaled site plan of the place of occurrence---Prosecution witnesses thus failed to establish the reason for their presence at the place of occurrence at the time of occurrence---Both the witnesses claimed that after the occurrence they brought the then injured/deceased to their house while holding him---Clothes of both the witnesses, in circumstances, should have been smeared with blood, however, the Investigating Officer of the case did not take any such blood-stained clothes of the witnesses in possession---Investigating Officer of the case, who otherwise showed extraordinary interest in the case, did not take the clothes of the eye-witnesses, which were stained with blood, into possession and if those were sent to the Forensic Science Agency for examination and grouping with that of the blood-stained clothes of the deceased, the same would have provided the strongest corroboration to the testimony of the two eye-witnesses---Said omission struk at the roots of the case of the prosecution and laid bare the untruthful and false claim of the said witnesses to have been present at the place of occurrence at the time of occurrence---Both the said witnesses were under a duty to provide a convincing explanation appealing to a prudent mind of their presence at the crime spot otherwise their testimony had to be declared questionable and unacceptable---Said witnesses also claimed that on their way back from the place of occurrence to their residence, the blood of deceased fell on the path taken by them, however, no blood-stained earth was collected to prove the said claim---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Mst. Mir Zalai v. Ghazi Khan and others 2020 SCMR 319 and Nadeem alias Kala v. The State and others 2018 SCMR 153 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Unnatural conduct of eye-witnesses---Scope---Accused was charged that he and co-accused committed murder of the brother of the complainant---Occurrence had taken place at 12.10 a.m. at night and deceased had received as many as five firearm entry wounds, however, still he was not taken to the hospital and was brought to his home---Deceased arrived at the hospital after more than 3½ hours of the occurrence---Said fact was hard to believe and was against human conduct that the injured later deceased, who had received as many as five firearm entry wounds on his person, kept bleeding at his house for such a long period and was brought to the hospital after delay---Said fact also proved that both the witnesses were not present and had they been present then they must have taken the then injured (deceased) to the hospital---All those omissions were conspicuous by their absence---In absence of physical proof or the reason for the presence of the witnesses at the crime scene, the same could not be relied upon---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Rafiq v. State 2014 SCMR 1698; Usman alias Kaloo v. State 2017 SCMR 622 and Nasrullah alias Nasro v. The State 2017 SCMR 724

rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Source of light---Accused was charged that he and co-accused committed murder of the brother of the complainant---Record showed that no source of light, which could have been available at the place of occurrence at the time of occurrence allowing the witnesses to identify the assailants was taken into possession by the Investigating Officer, despite the fact that as per prosecution's own claim the occurrence had taken place at about 12.10 a.m. (night time)---Eye-witness also admitted during cross-examination that they were only carrying sticks and did not possess any torch or any other source of light at the time of occurrence which could have enabled them to witness the same---Furthermore, the Investigating Officer of the case, during his investigation, did not take into possession any article so as to prove that sufficient light was available at the place of occurrence at the time of occurrence for the witnesses to have made such a positive identity of the assailant nor the witnesses produced any such source of light during the investigation of the case or during the trial---No such electric light bulb or any other light source was taken into possession by the Investigating Officer in the light of which the witnesses had allegedly witnessed the occurrence---Prosecution failed to establish the fact of such availability of light source and in absence of their ability to do so, court could not presume the existence of such a light source---Absence of any light source had put the whole prosecution case in murky shadows the depth of which the prosecution could not get itself out---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.

Gulfam and another v. The State 2017 SCMR 1189; Hameed Gul v. Tahir and 2 others 2006 SCMR 1628; Basar v. Zulfiqar Ali and others 2010 SCMR 1972; Azhar Mehmood and others v. The State 2017 SCMR 135 and Arshad Khan v. The State 2017 SCMR 564 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Unnatural conduct of accused---Scope---Accused was charged that he and co-accused committed murder of the brother of the complainant---Record showed that the occurrence took place only when witnesses had arrived at the place of occurrence---Said narrative of the witnesses that the accused kept waiting for their arrival at the place of occurrence and thereafter committed the offence was unnatural and could not be believed---Opposed to human conduct that an assailant would keep waiting for the arrival of the witnesses prior to the commission of the offence---More illogical that being perceptive of the fact that by pending the matter the accused ran the risk of the arrival of the witnesses and let them deposing against the accused even then the assailants kept waiting for their arrival---Such behaviour, on part of the accused, ran counter to natural human conduct and behaviour---Both the eye-witnesses were not present at the time of occurrence at the place of occurrence and had not witnessed the occurrence---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

State through Advocate-General, Khyber Pakhtunkhwa, Peshawar v. Hassan Jalil and others 2019 SCMR 1154 rel.

(e) Criminal trial---

----Witness---Common set of witnesses---Scope---Common set of witnesses could be used for recording acquittal and conviction against the accused persons who were charged for the commission of same offence.

(f) Criminal trial---

----Witness---Deviation by witness from stance---Effect---Once a witness was found to have lied about a material aspect of a case, it could not then be safely assumed that the said witness would declare the truth about any other aspect of the case---Testimony of one detected in a lie was wholly worthless and must of necessity be rejected---If a witness was not coming out with the whole truth then his evidence was liable to be discarded as a whole meaning thereby that his evidence could not be used either for convicting accused or acquitting some of them facing trial in the same case. [p. 604] O

Criminal Miscellaneous Applica-tion No. 200 of 2019 in Criminal Appeal No. 238-L of 2013 PLD 2019 SC 527 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Same set of evidence/witness statements forming basis of acquittal of co-accused persons used to convict accused persons without any independent corroboration---Scope---Accused was charged that he and co-accused committed murder of the brother of the complainant---Record showed that it was the accused and his co-accused, since acquitted, who had fired at the deceased---Eye-witnesses had also saddled co-accused, since acquitted, with the responsibility of raising a lalkara---Eye-witnesses did not draw any distinction with regard to the role of the accused and co-accused (since acquitted) during the occurrence while making their statements before the Trial Court---Court was unable to find any independent corroboration of the prosecution case against the accused and was unable to distinguish the case of the accused from the case of acquitted co-accused as the prosecution evidence with regard to the accused and with regard to co-accused (since acquitted) was similar---Eye-witnesses were adjudged to have deposed falsely not only against co-accused (since acquitted)---No reason was available to believe statements of eye-witnesses with regard to the accused in absence of any reason to do so---Said fact lying on part of the of eye-witnesses with regard to both the co-accused (since acquitted) had vitiated the trust of the court in them---Evidence of eye-witnesses, in circumstances, had no worth and was to be rejected outright---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)---

----Ss. 302(b) & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Withholding material evidence---Scope---Accused was charged that he and co-accused committed murder of the brother of the complainant---In the present case, the place of occurrence was a room which was inhabited by a lady---Neither during the investigation of the case nor before the Trial Court, the statement of the said lady was recorded---Such lady, who admittedly was the resident of the place of occurrence, did not appear during the investigation of the case and did not depose anything regarding the occurrence---Case of prosecution was not that the said lady was not present in the house at the time of the occurrence---Such failure of the prosecution to produce the said lady as a witness has repercussions, which entailed the failure of the prosecution case against the accused---Article 129 of the Qanun-e-Shahadat, 1984, provided that if any evidence available with the parties was not produced, then it shall be presumed that had that evidence been produced the same would have gone against the party producing the same---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.

Shamshad v. The State 1998 SCMR 854; 1999 SCMR 2844; Lal

Khan v. The State 1996 SCMR 1846; Usman alias Kaloo v. The State 2017 SCMR 622; Muhammad Irshad v. Allah Ditta and others 2017 SCMR 142 and G. M. Niaz v. The State 2018 SCMR 506 rel.

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

----Art. 46--- Dying declaration---Evidentiary value--- Principles--- Dying declaration could be made the basis for awarding conviction provided it was free from the menace of prompting and tutoring and was proved to have been made by none other than the deceased himself---Paramount reason for attaching importance and credibility to such a statement was the presumption that a dying person seldom lied.

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

----Ss. 302(b) & 34---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Dying declaration---Scope---Accused was charged that he along with his co-accused committed murder of the brother of the complainant---Record showed that the statement of injured then deceased was recorded in the hospital---Perusal of the record revealed that the Investigating Officer made no effort to procure the attendance of any unconnected witness, though it could easily be done from the hospital---Another aspect of the case was that the said statement of deceased was recorded at the hospital and the certificate regarding the ability of the then injured later deceased was also issued by a Medical Officer---Medical Officer was not produced before the Trial Court to prove the said certificate---Prosecution only got Medical Officer examined, who stated that the then injured later deceased was not in a position to make any statement---In absence of evidence that the then injured later deceased was able to make the statement, no reliance could be placed on the same---Deceased remained alive and admitted to the hospital for a considerable time, however, his purported statement was not attested by any official working at the hospital---Deceased remained alive and under treatment for a considerable time, during which there was sufficient time for the Investigating Officer to record the dying declaration through a Magistrate which exercise was not done---No explanation was traceable from the perusal of the record that as to why the statement of the deceased was not recorded in the presence of the doctor as it did not bear his signatures---For a dying person a doctor was like nothing less than an angel and the last ray of hope for him in his capacity as a saviour of his life, in that backdrop, a doctor could be the best person to endorse the dying declaration as it was expected from a dying person to tell the whole truth to the doctor---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Mst. Zahida Bibi v. The State PLD 2006 SC 255 rel.

(k) 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---Motive was not proved---Scope---Accused was charged that he and co-accused committed murder of the brother of the complainant---Motive of the occurrence as stated by the witnesses was an alleged quarrel which had taken place a few days prior to the occurrence between the deceased and the accused---Complainant admitted during cross-examination that he had not witnessed the episode of the quarrel between the deceased and the accused---Complainant, during the course of investigation, did not name his friend who had allegedly told him about the quarrel between the deceased and the accused---Complainant, before the Trial Court, failed to name the said friend who was the bearer of the said knowledge regarding the motive of the occurrence and his failure to do so showed that no such quarrel had taken place---Investigating Officer of the case also admitted that the complainant did not produce before him any witness in support of the motive of the occurrence---Prosecution did not produce any evidence, oral or documentary, so as to establish any reason existed with the accused to murder the deceased---No independent witness was produced by the prosecution to prove the motive as alleged---Prosecution was unable to establish any motive of the occurrence---Trial Court rightly disbelieved the evidence of the prosecution with regard to the motive---Prosecution witnesses failed to provide evidence enabling the Court 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---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.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Principle---One tainted piece of evidence could not corroborate other tainted piece of evidence.

Muhammad Javed v. The State 2016 SCMR 2021 rel.

(m) Criminal trial---

----Motive--- Recovery--- Evidentiary value---Scope---Motive and recovery are only corroborative pieces of evidence and if the ocular account is found to be unreliable then the evidence of motive and recovery have no value and lost their significance.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S. 103---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Weapon of offence was recovered from the possession of accused---Non-association of private witness in recovery proceedings---Scope---Accused was charged that he and co-accused committed murder of the brother of the complainant---Record showed that a pistol was recovered from the accused, however, the said recovery had no evidentiary value in the eyes of law as the same was made in clear violation of S. 103 of the Code of Criminal Procedure, 1898---Said recovery of the pistol from the accused could not be used as incriminating evidence against the accused, being evidence, which was attained through illegal means and hence hit by the exclusionary rule of evidence---Investigating Officer did not ask any individual, resident of the area neighbouring the place of the recovery of the pistol from the accused to witness the same---Report of Forensic Science Agency stated that the crime empties sent for analysis were fired from the pistol recovered from the possession of the accused---Court had noted that according to the statement of (Head Constable)/ witness a (Sub-Inspector)/ witness handed over a sealed parcel said to contain an empty to another (Sub-Inspector)/witness for its onward transmission to the office of Forensic Science Agency---Contrary to the statement of said (Head Constable)/ witness that he had received a parcel containing one empty, four empties were received at the Forensic Science Agency---Said witness/Head Constable was not declared hostile by the prosecution and in presence of his unchallenged testimony, it could be safely determined that the prosecution failed to prove the number of empties which were actually collected from the place of occurrence---Safe custody of the empties which were found to have been fired from the pistol was not proved---Possibility of fabrication on part of the Investigating Officer in order to obtain a favourable report of the Forensic Science Agency could not be ruled out---Recovery of the pistol from the accused did not further the case of the prosecution in any manner---Alleged recovery of the pistol was not proved and the same could not be used as a circumstance against the accused, in circumstances---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 sentences recorded by the Trial Court.

Muhammad Ismail and others v. The State 2017 SCMR 898 rel.

(o) 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 the accused not as a matter of concession but as of right.

Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Akram v. The State 2009 SCMR 230 rel.

Qazi Ibrar Hussain for Appellant.

Ms. Memona Ehsan-ul-Haq, Deputy District Public Prosecutor for the State.

Ch. Afrasiab Khan for the Complainant.

2023 Y L R 643

[Lahore]

Before Sardar Ahmed Naeem, J

ZAFAR IQBAL alias ZAFRI---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 333-J of 2014, heard on 13th September, 2021.

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

----Ss. 376 & 382---Rape, theft in dwelling house--- Appreciation of evidence---Benefit of doubt---Unnatural conduct of victim---Scope---Accused was charged for committing rape upon complainant and also taking away Rs. 2500/- from the box lying in the room of the complainant---In the present case, the conduct of the victim appeared to be unnatural---Victim neither raised any hue and cry nor attempted to resist the accused in any manner while she was being taken/brought to a nearby field---Victim claimed to have been raped upon by the accused against her consent but neither she produced her torn clothes during the investigation nor any mark of violence was seen/observed by the Medical Officer at the time of her medical examination, conducted after three days of the occurrence---Victim claimed that bulb was on at the time of occurrence but no such bulb was shown in, at or around the place of incident, whereas, father of victim claimed otherwise---Said witness responded to a question that no bulb was on at the time of occurrence, thus, question of witnessing the occurrence either by the father of the victim or any other seemed to be improbable, in particular, when no such light was found mentioned in the site plan prepared by the Investigating Officer.

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

----Ss. 376 & 382---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Rape, theft in dwelling house---Appreciation of evidence--- Benefit of doubt---Withholding material evidence---Effect---Accused was charged for committing rape upon complainant and also taking away Rs. 2500/- from the box lying in the room of the complainant---Record showed that co-accused of the accused tied the hands of the sister and father of the victim and then confined them in the room near tube well---Said sister was not examined either during the investigation or at trial---Best evidence was withheld by the prosecution and necessary inference might be raised in view of the Art. 129(g) of Qanun-e-Shahadat that had she been produced at trial, she would not have supported the prosecution version.

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

----Ss. 376 & 382---Rape, theft in dwelling house--- Appreciation of evidence---Benefit of doubt---Medical evidence---Scope---Accused was charged for committing rape upon complainant and also taking away Rs. 2500/- from the box lying in the room of the complainant--- Prosecution had not explained as to why the victim was medically examined after three days---Last worn clothes of victim were not produced before the Medical Officer or secured during the investigation---Victim was medically examined by Woman Medical Officer and her Medico-Legal Report was proved through secondary evidence--- Medico-Legal Report suggested that the vaginal swabs were dispatched to the Chemical Examiner and the opinion of the Medical Officer was subject to the result of the said swabs but neither the report of the Chemical Examiner was available on record nor taken during the investigation and for that reason, the final opinion of the Medical Officer was also not available on the record---Accused was acquitted from the charge, in circumstances.

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

----Ss. 376 & 382---Criminal Procedure Code (V of 1898), S. 342---Rape, theft in dwelling house--- Appreciation of evidence--- Benefit of doubt---Examination of accused---Scope---Accused was charged for committing rape upon complainant and also taking away Rs. 2500/- from the box lying in the room of the complainant---Trial Court recorded the statement of accused as if he was potent---Said statement of the accused was recorded on 07.09.2013 but that fact also found no mention in the interim order of the said date---Said statement of the accused could not be equated with a statement which was recorded under S. 342, or 340(2), Cr.P.C.---Statement of the accused under S.342, Cr.P.C., was recorded in question and answer form and a certificate was to be furnished by the Trial Court at the foot of the statement in terms of S.364, Cr.P.C., whereas, the statement under S.340(2), Cr.P.C., was always on oath and the accused could be cross-examined by the other side---Statement of the accused could be recorded under S. 342, Cr.P.C., more than once in appropriate cases, if needed, but of course, after observing formalities as prescribed by law---Statement was also read over to the accused and then he admitted the contents of the statement and then put his thumb impression or signed the same as token of its correctness---Procedure which was not prescribed by law was adopted by the Trial Court by recording statement of the accused and then, neither the Medical Officer was summoned nor the said Medico-Legal Report was put to the accused in his statement recorded under S.342, Cr.P.C.---Trial Court had committed the abuse of the process of Court by not questioning the accused in respect of the incriminating circumstance i.e. Medico-Legal Report regarding his potency, although the document was available on the record---When incriminating circumstances were not put to the accused in examination under S. 342, Cr.P.C., then the evidence giving rise to the circumstance could not be utilized by the Court.

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

----Ss. 376 & 382---Rape, theft in dwelling house--- Appreciation of evidence---Benefit of doubt---Accused was charged for committing rape upon complainant and also taking away Rs.2500/- from the box lying in the room of the complainant---Site plan available on the record did not reflect any outlet, window or ventilator in the room then occupied by family of the victim---In such circumstances, there was no possibility of witnessing the occurrence at 8:00 p.m. from a distance of four kanals---Record was totally silent regarding source of light at the place of occurrence or the room wherein the father and sister of the victim were confined and they claimed to have witnessed the occurrence---Victim claimed to have been raped upon by the accused in an open field but neither any family member nor any passerby or independent person was cited by the prosecution in support of the complainant's version---Record further suggested that the parties were related to each other and at some stage there was chance of betrothal/engagement between the victim and the accused---Accused was acquitted from the charge, in circumstances.

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

----Ss. 376 & 382---Rape, theft in dwelling house--- Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence from the accused---Reliance---Scope---Accused was charged for committing rape upon complainant and also taking away Rs. 2500/- from the box lying in the room of the complainant---Allegedly, the accused as well as his co-accused were armed with weapon but how that weapon was used during the commission of crime was a question which was open to objection---No such explanation was forthcoming on record---Recovery affected from the accused lent no corroboration to the prosecution version.

Muhammad Saleem v. The State 2010 SCMR 374 rel.

(g) Criminal trial---

----Benefit of doubt---Principle---If there was element of doubt as to the guilt of the accused, it must be resolved in his favour. [p. 651] I

Mst. Nazia Anwar v. The State and others 2018 SCMR 911 and Najaf Ali Shah v. The State 2021 SCMR 736 rel.

Muhammad Abbas Shah for Appellant.

Muhammad Akram Tahir, Deputy Prosecutor General for the State.

2023 Y L R 661

[Lahore]

Before Ali Baqar Najafi and Anwaarul Haq Pannun, JJ

Syed NAVEED AKHTAR---Appellant

Versus

ADDITIONAL CHIEF SECRETARY, HOME DEPARTMENT, LAHORE

and 7 others---Respondents

Criminal Appeal No. 66853 of 2021, decided on 10th October, 2022.

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

----S. 11-EE---Constitution of Pakistan, Arts. 4 & 5---Proscription of person---Right of individuals to be dealt in accordance with law---Loyalty to State and obedience to Constitution and law---Scope---Appellant's appeal was directed against order passed by Federal Government whereby his review application against inclusion of his name in Fourth Schedule of Anti-Terrorism Act, 1997 was dismissed---Validity---Executive power given to Federal Government had to be checked and when it effected the free mobility of the persons, it must be ensured that it was not exercised arbitrarily---Obedience to the State and the applicable law was undoubtedly a basic duty of every citizen of the country under Art. 5 of the Constitution---Likewise, it was also responsibility of the State to keep watch on the suspected persons for the purpose of monitoring their good conduct and if no adverse facts were brought to the knowledge of the authorities, they must not be haunted by previous conduct---Admittedly, during previous seven years, the appellant had not been involved in any criminal activity and had lead a life of a dutiful citizen, therefore, automatic inclusion of his name in Fourth Schedule consecutively for 3rd time was not protected under Art. 4 of the Constitution---Appellant's name was inserted in the Fourth Schedule without any adequate ground, which was not sustainable---Appeal was allowed and the impugned orders were set aside.

Khawaja Mureed Hussain v. Government of the Punjab, Home Department, Lahore and 6 others 2013 PCr.LJ 312; Nayyar Abbas Jaffari v. Government of Khyber Pakhtunkhwa through Secretary Khyber Pakhtunkhwa Home and Tribal Affairs Department and 4 others 2019 PCr.LJ 941; Ghazanfar Kazmi's case PLD 2017 Pesh. 105; Muhammad Yousaf Farooqi v. Government of Punjab 2012 PCr.LJ 905; Abdul Rauf v. Chief Commissioner, Islamabad and 5 others PLD 2006 Lah. 111 and Abu Bakar Muhammad Reza v. Secretary to Government of Punjab, Home Department and 3 others PLD 2004 Lah. 370 rel.

Malik Muhammad Riaz Kalwal for Appellant.

2023 Y L R 675

[Lahore]

Before Safdar Saleem Shahid, J

MUMTAZ BIBI and others---Petitioners

Versus

PUBLIC AT LARGE and others---Respondents

Civil Revision No. 471 of 2019, heard on 27th September, 2021.

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

----S. 372---Succession certificate---Residuary and distant kindred---Preference---Respondents applied for issuance of succession certificate regarding debts and securities (amount of insurance policy) left by deceased claiming that the deceased was their paternal uncle; that the deceased died issueless leaving behind his widow (petitioner); and that respondents were sons of one brother of the deceased ("A") entitled for succession as residuaries---Four petitioners being the widow and daughters of the other brother of the deceased ("M") maintained in their written statement that they were legal hears of the deceased as their father "M" died after the death of the deceased; that petitioners fell under the definition of "distant kindred" of the deceased, so the respondents were not entitled for succession as they were remote in relation---Trial Court accepted the application and granted the petitioners and said four respondents' shares from the insurance policy being legal heirs of the deceased under the definition of residuary---Petitioners' impugned the Trial Court's order but District Court dismissed their appeal---Validity---Deceased left one wife only---"M" being real brother of the deceased died after one month of deceased' death, leaving behind three daughters and a wife---"A" being another real brother of the deceased died 18 years after the death of the deceased---Wife of the deceased will get 1/4th as sharer and rest of the legal heirs of "M" and "A" will get the share from the remaining inheritance of the deceased---Petitioners failed to point any illegality in the judgments of both the Courts below---Revision petition was dismissed accordingly.

Mst. Shah Jahan Begum through Legal Heirs v. Zafar Ahmed and others PLD 2018 Lah. 426; Mian Mazhar Ali and others v. Tahir Sarfraz and others PLD 2011 Lah. 23; Bashir Ahmed and 3 others v. Razia Bibi 2000 SCMR 1100; Bashir Ahmad and 2 others v. Atta Muhammad Khan and 20 others 2005 SCMR 1271; Mst. Bhaggay Bibi andothers v. Mst. Razia Bibi and others 2005 SCMR 1595 and Ghulam Ali v. Ghulam Muhammad and 3 others 1999 YLR 2182 rel.

Mst. Amina Khatoon and 5 others v. Mst. Nighat Jabeen and another PLD 2018 Sindh 325; Mst. Sughra Begum and 4 others v. Mst. Akbari Begum and 5 others PLD 2016 Sindh 232 and Mst. Sarwari Bibi v. Mst. Anwari Bibi and others 2004 MLD 1136 distinguished.

(b) Islamic law---

----Inheritance---Classes of heirs---Three classes of heirs namely: (1) Sharers, (2) Residuaries, and (3) Distant Kindred---"Sharers" are those who are entitled to a prescribed share of the inheritance---"Residuaries" are those who take no prescribed share, but succeed to the "residue" after the claims of the sharers are satisfied---"Distant Kindred"are all those relations by blood who are neither Sharers nor Residuaries.

Muhammadan Law by Mulla, Section 93 ref.

Ahmad Mansoor Chishti for Petitioners.

Hafiz Khaliq Ditta Langha for Respondents.

2023 Y L R 687

[Lahore]

Before Shahid Bilal Hassan, J

AHMAD and another---Petitioners

Versus

MANZOOR AHMAD---Respondent

Civil Revision No. 1611 of 2015, heard on 31st May, 2022.

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

----S.42---Declaration, issuance of---Precondition---Declaratory decree can only be passed to the effect of a pre-existing right which is being denied by some person.

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

----Ss. 12, 21 (c), 42 & 54---Contract Act (IX of 1872), S.29---Suit for specific performance of agreement to sell and declaration and injunction---Void agreement---Uncertainty of terms---Concurrent findings of two Courts below---Respondent/plaintiff filed suit for specific performance of oral agreement of sale allegedly in year 1970---Both the Courts below concurrently decided suit and appeal in favour of respondent/plaintiff---Validity---Claimwas on oral agreement allegedly reached at between parties as back as in year 1970---Particulars of land and of alleged oral agreement were not detailed in plaint, which had to be pleaded and proved---When subject agreement was void for uncertainty in terms of S. 29 of Contract Act, 1872, it could not be specifically enforced as enunciated in S.21(c) of Specific Relief Act, 1877---When respondent/plaintiff was yet to establish his right on the basis of alleged oral agreement, he could not claim a declaratory decree---Respondent/plaintiff did not lead any evidence showing that he was put in possession of suit property pursuant to alleged oral agreement between him and petitioner/defendant---Not a single word was uttered about payment of consideration amount by witnesses produced by respondent/ plaintiff---Ownership of petitioner/ defendant over disputed property was proved through unimpeachable and cogent evidence which was an admitted fact---High Court was vested with authority to undo concurrent findings of two Courts below when both the Courts below had failed to adjudicate upon the matter by appreciating law on the subject in a judicious manner and had misread evidence of parties---High Court set aside judgments and decree passed by two Courts below---Revision was allowed in circumstances.

Muhammad Riaz and others v. Mst. Badshah Begum and others 2021 SCMR 605; Muhammad Wali Khan and another v. Gul Sarwar Khan and another PLD 2010 SC 965; Mubarak Ali and others v. Khushi Muhammad and others PLD 2011 SC 155; Combined Investment (Pvt.) Ltd. v. Wali Bhai and others PLD 2016 SC 730; Sultan Muhammad and another v. Muhammad Qasim and others 2010 SCMR 1630; Ghulam Muhammad and 3 others v. Ghulam Ali 2004 SCMR 1001; Muhammad Nawaz (deceased) through LRs. v. Haji Muhammad Baran Khan (deceased) through L.Rs. and others 2013 PSC 1683 and Ali Muhammad v. Muhammad Hassan and others 2021 CLC 1111 rel.

Usman Lateef for Petitioners.

Hafiz Mushtaq Ahmad Naeemi for Respondent.

2023 Y L R 697

[Lahore]

Before Tariq Saleem Sheikh, J

ABDUL QAYYUM---Appellant

Versus

SHAMIM AKHTAR and others---Respondents

Writ Petition No. 35282 of 2021, decided on 19th April, 2022.

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

----S.5 & Sched.---Civil Procedure Code (V of 1908), O.XXI, Rr. 84, 85 & 86---Execution of decree passed by Family Court---Auction of husband's property---Right to forfeited money---Principle of unjust enrichment---Petitioner made various payments towards maintenance of his children and wife, but the decree was not satisfied---Executing Court directed auction of petitioner's agricultural land---One lady " Z.S" was declared as highest bidder and deposited Rs. 136500/- out of her purchase-money---Subsequently lady " Z.S" could not arrange balance purchase amount owing to which the Executing Court forfeited deposit of lady and directed re-auction of the property of petitioner---Second auction was held and one person "M.A" succeeded as bidder and (1/4 of the bid amount ) was deposited but remaining sum of bid was not paid by M.A and he was declared as defaulted by Executing Court---Executing Court forfeited money deposited by bidder---Respondents (mother and children) moved an application for withdrawal of deposited mone; Executing Court deducted auction expenses and allowed the application of respondents---When Executing Court intimated third auction of the property the petitioner submitted an application that he sought permission to pay sum in full and final settlement of the decree---Respondents contended that they were entitled to the forfeited amount and petitioner could not claim any set off against it---Executing Court dismissed application of petitioner---Petitioner filed revision petition before Appellate Court, which was dismissed--- Validity--- Order XXI, R. 84 of C.P.C. stipulated that whenever an immovable property was auctioned, the person declared to be the purchaser should immediately, after such declaration, pay 25 % of the amount of his purchase money to the Court Auctioneer and in default thereof the property should be re-sold forthwith----Said condition was violated when the first auction was held---Order XXI, R.85 of the C.P.C. stated that the auction purchaser should pay the full amount of the purchase-money payable by him into the Court by the fifteenth day from the sale of the property and O.XXI, R.86 defined the consequences of default---Under O.XXI, R. 86 of C.P.C. the Court may, if it thinks fit, after defraying the expenses of the sale forfeit the deposit of defaulting purchaser to the Government---In the case in hand, the Executing Court had not invoked R. 86 of O.XXI of the C.P.C. and forfeited the deposit of lady "Z.S" and person "M.A"--- Executing Court had no jurisdiction to give it over to the respondents ---Claim of petitioner and respondents was not only contrary to O.XXI, R. 86 of the C.P.C. but also the principle of unjust enrichment---Respondents should be directed to return the money unlawfully paid to them but it might be extremely difficult, if not possible, for respondents to do same at this point in time---Since respondents were entitled to recover that amount from the petitioner, the account would be settled if the Executing Court recovered that sum from petitioner and paid to the government----Constitutional petition was dismissed with the direction that petitioner should pay whatever amount was due to respondents under the decree and he should have also paid the amount of the forfeited deposit into the Executing Court which shall be deposited in the government treasury and in case of default the Executing Court should forthwith initiate proceedings for the auction of the petitioner's property---Constitutional petition was dismissed.

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

----O. XXI, R. 86, C.P.C.---Word "forfeited" used in O.XXI, R.86, C.P.C.---Forfeiture amount belongs to the government and none of the parties has any right or interest therein.

Rai Junaid Nazir for Petitioner.

2023 Y L R 729

[Lahore (Multan Bench)]

Before Anwaar Hussain, J

KHADIM HUSSAIN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAYYAH and 12 others---Respondents

Writ Petition No. 12080 of 2020, decided on 11th May, 2022.

(a) Punjab Rented Premises Act (VII of 2009)---

----S. 2(m)---Oral tenancy---Rented premises must be rented out through a written tenancy agreement, however, an oral tenancy has not been barred under Punjab Rented Premises Act, 2009.

Rana Abdul Hameed Talib v. Additional District Judge Lahore and others PLD 2013 SC 775 and Mirza Book Agency through Managing Partner and others v. Additional District Judge, Lahore and others 2013 SCMR 1520 rel.

(b) Punjab Rented Premises Act (VII of 2009)---

----S. 6--- Tenancy agreement---Relationship of landlord and tenant---Proof---Payment and receipt of rent is sine qua non for establishing relationship of tenancy between the parties.

(c) Punjab Rented Premises Act (VII of 2009)---

----Ss. 2(m), 6 & 19---Landlord and tenant, relationship---Oral tenancy agreement--- Proof--- Petitioner was aggrieved of eviction order passed by Lower Appellate Court---Validity---In order for an eviction petition to succeed and exercise of jurisdiction by Rent Tribunal under Punjab Rented Premises Act, 2009, it was necessary that respondents were to establish their own case independent of failure of petitioner to successfully challenge their title---Respondents asserted a particular fact regarding existence of relationship of tenancy between the parties on the basis of an oral agreement and was under obligation to prove the same---Witness of respondents contradicted their stance while being cross-examined, therefore, case of respondents squarely fell within the purview of maxim "Allegans Contraria Non Est Audiendus" (A person who alleges things contradictory to each other is not to be heard)---Settlement of rent was one of the basic requirements for establishing landlord-tenant relationship and in absence of the same, there could not be an oral tenancy---Where settlement of rent was not alleged in eviction petition and thereafter not proved, an eviction petitioner could not succeed merely on the ground of presumption that an eviction petitioner was owner of rented premises was also the landlord---There were other remedies available under the law to owner of such an immovable property to have unlawful occupant or a trespasser who was not a tenant, evicted from such property, which the respondents could avail---Findings rendered in eviction proceedings could not confer any title upon petitioner qua the rented premises---High Court in exercise of constitutional jurisdiction, set aside order passed by Lower Appellate Court and restored that of Rent Tribunal declining to evict petitioner form the premises---Constitutional petition was allowed in circumstances.

Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45; Mst. Azra Riaz v. Additional District Judge and others 2021 CLC 623; Yasin Khan v. Additional District No. VII, District Judge West, Islamabad and 2 others 2019 YLR 2894 and Muhammad Ibrahim v. Niaz Muhammad 2016 CLC 609 ref.

Sheikh Muhammad Azhar Hussain for Petitioner.

Ahsan Raza Hashmi and Muhammad Najeeb Safdar for Respondents Nos. 3 to 7.

Respondents Nos. 8 to 13 Proceeded ex-parte vide order dated 22.02.2022.

Muhammad Masood Bilal for Applicant (in C.M. No.2441 of 2022).

2023 Y L R 767

[Lahore]

Before Muzamil Akhtar Shabir, J

M. HAROON ASHRAF---Petitioner

Versus

Dr. FAYYAZ RANJHA and 9 others---Respondents

Writ Petition No. 62143 of 2021, decided on 17th November, 2021.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Disputed question of fact---Alternate remedy---Roving inquiry---Petitioner was aggrieved of multiple acts done by different authorities and sought action against such authorities, against whom he had already initiated proceedings before other forums---Held, that contents of petition were based on jumbled and incoherent facts narrated in a confused manner, vague in details raising multifarious and indefinite grounds and allegations requiring roving inquiry in the affairs of various departments for fishing out some kind of a case with prayer, which itself was also multidimensional---Petitioner also had availed remedies before certain other forums, result of which was not disclosed--High Court declined to comment upon merits of the case, lest it might prejudice any other remedy available to petitioner---Constitutional petition was dismissed in circumstances.

Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455; Muhammad Riaz Bhatti v. Federation of Pakistan 2004 SCMR 1120; Fida Hussain and another v. Mst. Saiqa and others 2011 SCMR 1990 and Messrs Punjab Beverage Company (Pvt.) Ltd. through General Manager (Administration) v. Central Board of Revenue and 4 others 2001 PTD 3929 rel.

Petitioner in person with Ch. Muhammad Abbas Kamboh for Petitioner.

2023 Y L R 793

[Lahore]

Before Muhammad Tariq Nadeem, J

GHULAM DASTGEER---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 2323 of 2015, heard on 15th December, 2021.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Dishonest improvement made by complainant--- Scope--- Accused were charged for committing murder of the brother of the complainant by firing---Ocular account of the incident had been furnished by complainant and two other eye-witnesses---Complainant happened to be a real brother of deceased and FIR was lodged on his application---Stance of the complainant described in his application was totally different to the stance taken by him while appearing before the Trial Court---Complainant while appearing as a witness did not state that his version was not correctly recorded in the application and the complainant also did not offer any explanation regarding improvements made by him---Complainant got written in the complaint that he along with deceased was coming on metalled road, whereas, while appearing before the Trial Court he made dishonest improvement by stating that he alone was coming from the house of his brother---Trial Court had also noticed that complainant made improvements to the effect that in the meantime when he reached near the shop of the accused persons his brother/deceased and eye-witness came there on motorbike---Complainant mentioned in that complaint that fire of co-accused (since acquitted) hit on the right ear of his brother who fell down after moving some distance, whereas, while appearing in the witness box he stated that fire of co-accused (since acquitted) landed on right temporal, eye-witness tried to get escape on motorcycle but at some distance on Paka Morr deceased fell down from the motorcycle---Notable, that while appearing as court witness, the complainant introduced totally a new fact that the deceased was not coming along with him from the house of his brother and thereafter deceased reached at the place of occurrence on motorbike with one eye-witness---Said fact made the case of prosecution as highly doubt-full which was very much fatal to the prosecution---Circumstances established that the prosecution failed to establish the culpability of the accused on the basis of its evidence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Presence of complainant at the place of occurrence was doubtful---Scope---Accused were charged for committing murder of the brother of the complainant by firing---Record showed that the witness had stated in his examination-in-chief that he made a call to Rescue 15 and soon after that police reached the place of occurrence and collected blood stained earth---If it was so and the police reached at the place of occurrence after receiving the call of a witness then complainant who claimed to be an eye-witness of the occurrence was also present at the place of occurrence then he should have moved application straightaway for registration of FIR at the spot but as per prosecution's own case the complainant submitted complaint to Police Official/ASI at a Ada at 05.00 p.m., whereas,occurrence took place on 04.30 p.m. and according to the statement of witness he reported the matter to Rescue 15 soon after the occurrence and police reached there---Moreso, one of the important eye-witnesses was not produced before the Trial Court giving rise to an adverse inference regarding his presence at the scene of the crime---Said analysis made the presence of the eye-witnesses at the crime scene doubtful, as concluded by the Trial Court---Consequently, the medical evidence or the recovery of the firearm from the accused lent little support or corroboration to the case of the prosecution---Circumstances established that the prosecution failed to establish the culpability of the accused on the basis of its evidence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, common intention---Appreciation of evidence---Defence plea---Scope---Accused were charged for committing murder of the brother of the complainant by firing---Accused took the plea that he acted in self defence in order to save his own life from the hands of deceased as evident from the statement of accused---Accused claimed innocence and pleaded acquittal on account of false implication---If the prosecution evidence was disbelieved by the court in its entirety, the defence version was to be accepted or rejected as a whole and it was legally not possible to accept the inculpatory part of the defence plea and reject its exculpatory part---Defence plea could be accepted or rejected in toto and the practice of picking and choosing some sentences favouring the prosecution in isolation of those favouring the accused was strictly prohibited by the law---Circumstances established that the prosecution miserably failed to discharge its duty---Appeal against conviction was allowed, in circumstances.

Azhar Iqbal v. The State 2013 SCMR 383; Ashiq Hussain v. The State PLD 1994 SC 879; Amin Ali and another v. The State 2011 SCMR 323; Muhammad Asghar v. The State PLD 2008 SC 513 and Iftikhar Ahmed v. The State and others 2014 SCMR 7 rel.

(d) 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.

Muhammad Akram v. The State 2009 SCMR 230; Muhammad Mansha v. The State 2018 SCMR 772; Muhammad Imran v. The State 2020 SCMR 857; The State through P.G. Sindh and others v. Ahmed Omar Sheikh and others 2021 SCMR 873; Mst. Asia Bibi v. The State and others PLD 2019 SC 64; Abdul Jabbar and another v. The State 2019 SCMR 129 and Naveed Asghar and 2 others v. The State PLD 2021 SC 600 rel.

Muhammad Ramzan for Appellant.

M. Mooen Ali, Deputy Prosecutor General for the State.

Mudassar Naveed Chattha for the Complainant.

2023 Y L R 809

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

MUHAMMAD AZHAR---Petitioner

Versus

CHAIRMAN, AUCTION COMMITTEE, MUZAFFARGARH and 2 others---Respondents

Writ Petition No. 1565 of 2020, decided on 31st January, 2020.

(a) Legal Practitioners and Bar Councils Act (XXXV of 1973)---

----S.56(n)---Pakistan Legal Practitioners and Bar Councils Rules, 1976, Rr.108-M & 175-C---Constitution of Pakistan, Art. 199--- Constitutional petition---Maintainability---Bar Association, status of---Petitioner was aggrieved of cancellation of contract awarded to him by Bar Association---Validity---Bar Associations were provided recognition under Pakistan Legal Practitioners and Bar Councils Rules, 1976, at all levels including National, Provincial, District and Tehsil levels---All Bar Associations were private organizations and could not be treated as statutory bodies---Neither office bearers i.e. Executive Committee of Bar Associations nor Auction Committee constituted by them could be treated as holding any statutory existence, official position or status of a "Government Department" or "Authority" having any statutory authority or functioning in connection with the affairs of Federation---Such Associations and Committees could be treated as representatives of Private Organization and did not fall under the definition of "person" as provided in Art. 199(5) of the Constitution to treat them as amenable to Constitutional jurisdiction of High Court---Petitioner sought enforcement of contract and the same was not permissible as Constitutional petition for enforcement of contract was not maintainable where it was a private contract and not a statutory agreement---Constitutional petition was dismissed in circumstances.

Pakistan Defence Officers' Housing Authority and others v. Lt.-Col. Syed Jawaid Ahmed 2013 SCMR 1707; Mohammad Waqas Malik, Advocate v. Islamabad Bar Council through Secretary and 2 others 2017 CLC 1173; Abdul Wahab and others v. HBL and others 2013 SCMR 1383; Pakistan Olympic Association through President and others v. Nadeem Aftab Sindhu and others 2019 SCMR 221 and Human Rights Commission of Pakistan and 2 others v. Government of Pakistan and others PLD 2009 SC 509 ref.

Muhammad Azam Suhail and others v. Government of Pakistan through Secretary Ministry of Petroleum and Natural Resources, Islamabad and others 1998 SCMR 1549 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Fundamental rights---Scope---Not every grievance of a party can be enforced through Constitutional petition against a private individual but it can only be exercised when enforcement of fundamental right is concerned.

The Commissioner and another v. Mian Sher Muhammad 1972 SCMR 395 and Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44 rel.

(c) Constitution of Pakistan---

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

Nasir-ud-Din Mehmood Ghazlani for Petitioner.

Muhammad Shahid Riaz, Assistant Advocate General, Punjab.

Mahar Zameer Hussain Sandhal, Assistant Attorney General for Pakistan.

2023 Y L R 820

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

GHULAM HUSSAIN---Petitioner

Versus

RENT CONTROLLER, GUJRANWALA and another---Respondents

Writ Petition No. 15624 of 2020, decided on 20th December, 2021.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss. 21 & 22---Eviction---Ex-parte order---Application for setting aside ex-parte eviction order was submitted by two of the respondents, which was accepted by Special Judge (Rent) directing the petitioner to implead another respondent as party to ejection petition---Petitioner contended that application for setting aside ex-parte decree was not accompanied by application for leave to contest; that the Rent Tribunal accepted the respondents' application beyond the statutory period of 10 days; that address of the one of two respondents mentioned in rent agreement was incorporated in eviction petition, however, in application for setting aside of eviction order, one of the two respondents malafidely mentioned a different address---Held, that the record showed that no process/summons, served / unserved, returned--- Third respondent remained unaware about the proceedings of the ejectment petition---Substitute service could only be adopted when all efforts to effect service upon respondent in ordinary course were made, but failed---No report/statement of process server was on record to the effect that one of the two respondents was either avoiding service of summons, or it could not be found for any reason---When law required a thing to be done in a particular manner, the same must be done accordingly---Both the petitioners and third respondent were co-sharers of the property in question and simultaneously claiming tenancy agreement with regard thereto---Rent Tribunal was justified to sanguine for a judicious/sagacious conclusion in case of third respondent was arrayed as party to the proceedings---Constitutional petition was dismissed accordingly.

Bakht Munir v. Qadir Khan and another PLD 2014 Lah. 87; Muhammad Ilyas Khan Lodhi v. Additional District Judge and 4 others 2011 YLR 2705

and Mureed Hussain v. Additional District Judge and others 2018 MLD 162 rel.

(b) Punjab Rented Premises Act (VII of 2009)---

----Ss. 21 & 22---Eviction---Setting aside ex-parte proceeding/decree---Defective service---Scope---If ex-parte orders/ decrees were passed on the basis of defective service, then same would adversely affect not only valuable rights of the litigants but also render the Court proceedings defective/meaningless as final order on defective foundation was liable to be set aside.

Anwar Ahmed v. Waqar Ahmed and 8 others PLD 2015 Sindh 326 rel.

Muhammad Naeem Ahmad Ch. for Petitioner in instant as well as connected petition.

Muhammad Nouman Shams Qazi and Dr. Saira Nouman for Respondent No.2.

2023 Y L R 854

[Lahore (Bahawalpur Bench)]

Before Safdar Saleem Shahid, J

IFTIKHAR ALI and others---Petitioners

Versus

RIAZ-UL-HAQ alias RIAZ AHMED and others---Respondents

Civil Revision No. 478 of 2015/BWP, decided on 27th October, 2021.

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

----S.12---Suit for specific performance of agreement to sell filed by petitioners before Trial Court--- Respondents contested the suit by filing written statement---Trial Court dismissed suit of the petitioners---Petitioners filed appeal before Appellate Court---Appellate Court dismissed the appeal of the petitioners---Advance consideration, proof of---Held, that Agreement to sell mentioned that advance amount was paid but there was no receipt for that when and where advance consideration was paid---Oral assertion of the petitioner's witnesses was there but that was also not consistent regarding the payment---In the plaint, there was not mentioning of the fact that agreement to sell was settled some days prior to the writing of the agreement to sell---Petitioner's witnesses consistently, mentioned that the agreement to sell was settled some days prior to the writing of agreement to sell---Even petitioner himself stated that the agreement to sell was written in the compound of the court and advance money was also paid on that day---Advance consideration amount had not been proved---No receipt was written on that date rather it was not mentioned that why the receipt was not written regarding the advance payment---Where the agreement to sell was alleged, the claiming person/plaintiff was bound to mention all the factors on the basis of which he claimed that execution of agreement to sell in the plaint and then, to prove the same with the reliable confidence inspiring evidence---Petitioners had not mentioned this factor that prior to writing of agreement to sell, any settlement between the parties was settled 02/03 days before in the house of one of the witness of petitioner---Civil revision was dismissed---Petitioners were not entitled for any discretionary relief on the ground that they had not proved the execution of the agreement to sell and the payment of the consideration amount--- Furthermore, if it was supposed that petitioners had paid amount to the respondents, even then the respondents had no lien to enter into an agreement to sell on behalf of the minors---Agreement to sell otherwise not valid and enforceable in the eye of law.

Hafiz Muhammad Iqbal v. Gul-e-Nasreen and others 2019 SCMR 1880 rel.

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

----O. XX, R. 5---Specific Relief Act (I of 1877), S.12---Contract Act (IX of 1872), S.11---Guardians and Wards Act (VIII of 1890), S.29---Court to state its decision on each issue---Purpose of framing issues---Held, that provision of the C.P.C binds the Court to make its findings on all the issues framed but at the same time it empowers the Court that if the Court finds it sufficient that the decision/findings on one or two issues would be sufficient for the decision of the case it would not have any effect on the other decided issues, then the court may do so---Purpose of framing of issues was to bring on record the real controversies between the parties---Out of the pleadings, the Court after finding the real controversy between the parties, farmes the issues and on these issues, the evidence is invited---Thereafter, the Court, if it deems that if the decision on one or two issues in detail is sufficient to decide the fate of the proposition, the Court can do so, and for the rest of issues if framed, if those were regarding the preliminary objections of the defendant or which have been framed on the basis of pleadings and which have connection with the main issues, and the Court considers that even without discussing these issues, the matter could be settled, there is no need to give detailed discussion on such issues---In the present case, petitioners objection regarding the Trial Court judgment was not valid---Main issues had been discussed by Trial Court, while fulfilling all the requirements of law---Appellate Court had given the findings on each and every issue---On those issues where the onus to prove was placed on the defendants/the petitioners, if the petitioners had not led any evidence then there was no need to discuss in detail the fate of that issue---No evidence was led by the petitioners/ defendants regarding that issue, and that issue was decided accordingly---Appellant Court had also pointed out that this issue was relevant and whole of the fate of the proposition was based on the decision of that issue---Issue was decided in detail by Appellate Court---If any other issue had any effect on the fate of the proposition, that would have been discussed and answered by the courts below---Trial Court mentioned that onus of the issues which were placed on the petitioners/defendants, did not produce any evidence---So there was no need to discuss those issues in detail and they were answered in negative by Trial Court---Civil revision was dismissed with no order as to costs.

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

----S.29---Specific Relief Act (I of 1877), S.12---Civil Procedure Code (V of 1908), O. XX, R. 5---Contract Act (IX of 1872), S.11---Persons entitled to sell immovable property of minor---Admittedly, the property of minors could not be sold by anybody including father who was legal guardian of the minors except in some exceptional cases which have been stated in the Guardians and Wards Act, 1890 that following persons were legal guardian and entitled to be guardian of the property; (i) the father; (ii) the executor appointed by the will of father's will; (iii) the father's father; (iv) the executor appointed by the will of the father's father---In the present case, father of minors was never appointed as guardian by the Court under S. 29 of the Guardians and Wards Act, 1890---Father of minors had never applied for that---Furthermore; none of the circumstances were there to consider that father sold out the land to the petitioners as per their claim---In the agreement to sell, petitioners have mentioned that father of the minor would get the certificate and permission for the sale of the property and then, agreement to sell could be completed---Till the filing of suit respondents/plaintiffs had not brought on record anything that they ever gave any notice to father "M.H." for initiating the guardian certificate in order to execute the agreement to sell---Respondents themselves had also not filed any application before any Court to force "M.H." for completion of the agreement to sell---Even, the person who was appointed as guardian of the property of the minors, could not enter into the agreement to sell of the property of the minors with anyone except when it was in the benefit of the minors and that also required the permission of the Court---Petitioners act made their version doubtful that they were paying the amount to a person who was even not authorized to enter into a contract and for three years till filing of suit, they did not take any initiative to complete the said person for initiating to obtain the guardianship of the minors regarding the property.

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

----S. 11---Civil Procedure Code (V of 1908), O.XX, R.5---Specific Relief Act (I of 1877), S.12---Guardians and Wards Act (VIII of 1890), S.29---Person competent to contract---Minors were not competent to enter into the contract---Any contract which had been shown by the minors or on behalf of the minors without any authority, would be invalid.

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

----Arts. 59, 79, 17, 117 & 120---Civil Procedure Code (V of 1908), O.XX, R. 5---Specific Relief Act (I of 1877), S.12---Contract Act (IX of 1872), S.11---Guardians and Wards Act (VIII of 1890), S.29---Execution of agreement---Onus to prove--- Signature on document---Comparison of signature/thumb mark---Agreement to sell was comprised of 03 pages and only on the last page of the document, the signature of one of the respondents was affixed---When all the part of agreement to sell was not signed, it made the agreement to sell/document doubtful and that could not be rely upon in any way; unless not proved that all 03 pert were produced with the same aim/object and those were signed by the executor---No sign of any identifier was on the agreement to sell---On each pert there was no signature of the vendee, so the execution of document could not be said to be proved---Petitioners did not file any application for comparison of the signature/thumb mark presented on the agreement to sell before the Trial Court inspite of the fact that the matter remained pending there for about six years---From the very beginning from the respondent's side, it was denial that no such agreement to sell was executed by the respondents---Petitioners were the beneficiaries of the agreement to sell and they were under obligation to prove the agreement to sell---Existence of agreement to sell, did not mean that it was validly executed and a proved document---When such document which create a right or mentioned some rights or obligations and if it was denied by the other side who was being effected by said document, that person who was beneficiary of the document had to prove the document.

Zafar Iqbal and others v. Mst. Nasim Akhtar and others PLD 2012 Lah. 386 rel.

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

----S. 115 & O. XX, R. 5---Concurrent findings on facts---Scope---No mis-reading or non-reading of the evidence---Concurrent findings on facts by the two courts below did not need interference by High Court.

Shamshad Begum v. Mst. Huma Begum and others 2008 SCMR 79; Arshad Mahmood v. Additional District Judge and 5 others 2005 SCMR 516; Haji Abdullah and 10 others v. Yahya Bakhtiar PLD 2001 SC 158 and Hanif and others v. Malik Ahmad Shah and another 2001 SCMR 577 rel.

Ahmad Mansoor Chishti for Petitioners.

Sh. Irfan Karim-ud-Din for Respondents.

2023 Y L R 887

[Lahore]

Before Masud Abid Naqvi, J

MUHAMMAD SHAFI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

R.F.A. No. 444 of 2016, heard on 9th October, 2018.\

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3---Summary suit upon bills of exchange, etc---Defendant showing defence on merits to have leave to appear---Non-submission of surety bond---Effect---Respondent filed a suit for recovery of certain amount against the appellant wherein application for leave to appear and defend the suit was filed by the appellant---Application filed by appellant was accepted subject to submission of surety bond equal to suit amount---However, despite availing several opportunities, the surety bond to the satisfaction of Trial Court was not filed and consequently the suit was decreed vide impugned judgment and decree---Validity---Appellant's conduct was very much contumacious---Appellant had tried not to comply with the order of the Trial Court through different tactics and ultimately the Trial Court had no option but to decree the suit as the appellant's application for leave to appear and defend the suit was accepted conditionally---Trial Court had rightly proceeded in the matter---Appeal was dismissed.

Haji Ali Khan and Company, Abbottabad and 8 others v. Messrs Allied Bank of Pakistan Limited, Abbottabad PLD 1995 SC 363 and Murtaza Haseeb Textile Mills v. Sitara Chemical Industries 2004 SCMR 882 rel.

Syed Alamdar Hussain for Appellant.

Usama Ahmad for Respondent No.2.

2023 Y L R 901

[Lahore]

Before Malik Shahzad Ahmad Khan and Muhammad Tariq Nadeem, JJ

Syed ALI AKBAR---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 73389 and Murder Reference No. 534 of 2017, heard on 9th November, 2021.

(a) Criminal trial---

----Circumstantial evidence--- Scope---Prosecution was required to link each circumstance to the other in a manner that it must form a complete, continuous and unbroken chain of circumstances, firmly connecting the accused with the alleged offence---If any link was missing then benefit was to be given to the accused.

Muhammad Hussain v. The State 2011 SCMR 1127 and Nasir Javed and another v. The State 2016 SCMR 1144 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of seven hours and thirty minutes in conducting the post-mortem examination on the dead body of the deceased---Scope---Accused was charged for committing murder of the father of complainant---Record showed that matter was reported to the police on the same day within a period of two hours, however, according to the post-mortem report death occurred at 07:00 a.m. whereas autopsy on the dead body of deceased was conducted with the delay of seven hours and thirty minutes after the death---Keeping in view such 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 beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aide convictions and sentences recorded by the Trial Court, 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.

(c) 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 father of complainant---Complainant got recorded his supplementary statement to the Investigating Officer that two witnesses told him that they were present in the house of complainant when accused came there and took deceased along with him, thereafter, complainant's father did not return to home---Subsequently deceased was found in injured condition near the door of mosque---One witness was witness mentioned in the FIR; whereas other witness was mother of complainant and widow of deceased---If the said witnesses witnessed deceased going from his house in the company of accused then why they had not disclosed that fact to complainant before registration of FIR as well as to the Investigating Officer---Both the witnesses were closely related with each other and also related to deceased---Said witnesses were interested witnesses and due to their unnatural conduct they could not be termed as truthful witnesses and their evidence was not worthy of reliance---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aide convictions and sentences recorded by the Trial Court, in circumstances.

Zaheer Sadiq v. Muhammad Ijaz 2017 SCMR 2007 rel.

(d) Criminal trial---

----Witness---Supplementary statement---Scope---Courts always deprecated such kind of statement, which was made with the purpose to strengthen the case of the prosecution at the behest of the Police Officials or some other ulterior motive to get the suspect convicted by hook and crook.

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

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Last seen evidence---Scope---Accused was charged for committing murder of the father of complainant---Last seen evidence had been furnished by two witnesses---Both the said witnesses were nephews of deceased---According to one witness, he met police for the first time when accused came to the house of other witness---After attending funeral prayer, he had no contact with the complainant but during his cross-examination destructively stated that he joined investigation on the first day when FIR was registered---Similarly, other witness did not inform the evidence of last seen to the complainant till---Question arose that if said witnesses had seen deceased in the company of accused then why they had not disclosed that fact to the complainant and remained mum---Said witnesses had not been able to give any plausible reasoning qua their presence at the place of occurrence at the relevant time---Had the said witnesses being truthful witnesses and had they witnessed whatever they stated before the police and the Trial Court, they would have immediately informed the police much earlier---Such self-negating and contradictory statements of the said witnesses reflected that they were not truthful, rather they were deposing an afterthought, fabricated and concocted story just to create incriminating evidence to strengthen the case of un-witnessed occurrence against the accused---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aide convictions and sentences recorded by the Trial Court.

(f) Criminal trial---

----Evidence---Last seen evidence---Scope---Last seen evidence is always considered to be weak type of evidence, unless corroborated by some other independent evidence.

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

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Extra-judicial confession---Scope---Accused was charged for committing murder of the father of complainant---Extra-judicial confession allegedly made by accused before two witnesses---One witness, deposed that he along with other witness was sitting at his house, accused came there and started weeping and said that he had to pay some amount to deceased, who was demanding amount in lump-sum but he could not pay him the full amount, therefore, firstly, he tied up the hands of deceased with a rope and then after cutting the tied rope with a Chhuri threw him down from the top of the building---After throwing, deceased stuck with a Chappar---Accused took a bamboo and pushed deceased from the said Chappar down to the ground resulting into his death---Similarly, other witness narrated the same facts as deposed by the witness---Deposition of the said witnesses of extra-judicial confession when examined revealed that firstly the place chosen by the accused for such purpose was not at all suitable; secondly, why the accused had made extra-judicial confession before such persons who having some authority was expected to do him more harm than good---Both the said witnesses were nephews of deceased---One witness had described in his cross-examination that they did not try to apprehend accused nor raised any hue and cry, and stated that they were frightened---Same was the reply of other witness---According to the prosecution story when accused made extra-judicial confession before the said witnesses, he was empty handed then what was the reasoning, they could not have overpowered him---Such facts certainly raised serious doubt about the veracity of the witnesses and their testimonies were not upto the mark to place any reliance upon it---Evidence of extra-judicial confession made by accused regarding the incident was fabricated in order to create some circumstantial evidence in that un-witnessed incident---Such extra-judicial confession did not bear any credibility and could not be permitted to render any sort of help to the case of the prosecution---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aide convictions and sentences recorded by the Trial Court.

(h) Criminal trial---

----Extra-judicial confession---Evidentiary value---Extra-judicial confession was a weak type of evidence.

Imran alias Dully and another v. The State and others 2015 SCMR 155; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; Mst. Asia Bibi v. The State and others PLD 2019 SC 64; Wajeeh-Ul-Hassan v. The State 2019 SCMR 1994 and Gul Muhammad and another v. The State through Prosecutor-General Balochistan 2021 SCMR 381 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Medical evidence---Scope---Accused was charged for committing murder of the father of complainant---Medical evidence had been furnished by Medical Officer, who conducted autopsy on the dead body of deceased vide post-mortem report---No other trustworthy direct or indirect evidence was available against the accused, which could be supported by the medical evidence---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aide convictions and sentences recorded by the Trial Court.

(j) Criminal trial---

----Medical evidence---Scope---Medical evidence might confirm the ocular account with regard to seat of injuries, its duration, nature of injuries and kind of weapon used for causing such injury but it could not connect the accused with the commission of crime.

Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327 and Sajjan Solangi v. The State 2019 SCMR 872 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Call data Record---Scope---Accused was charged for committing murder of the father of complainant---Recovery of mobile phone data, which simply depicted the number of caller as well of recipient, location, duration of call and not more than that, even there was no evidence that what was the conversation made between the caller and recipient---Call Data Record was not conclusive proof of involvement of accused in the commission of crime---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aide convictions and sentences recorded by the Trial Court.

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

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of motor cycle on the pointation of accused---Scope---Accused was charged for committing murder of the father of complainant---Motorcycle was recovered vide seizure memo, however, no registration number, colour, its company name had been described in the FIR, nor in the supplementary statement of the witnesses---Recovery of motorcycle at the pointation of accused was inconsequential and not helpful to the prosecution case---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aide convictions and sentences recorded by the Trial Court, in circumstances.

Naveed Asghar v. The State and another PLD 2021 SC 600 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of incriminating material--- Scope---Accused was charged for committing murder of the father of complainant---In the present case, chhuri and danda vide seizure memo, recovery of amount Rs. 77000/- and cell phones through recovery memo. were recovered, however, none amongst the said articles connected the accused with the commission of offence because it was not the case of prosecution that an amount of Rs.77000/- or cell phones were in the possession of deceased when he left his home---Likewise, it was not the prosecution case that chhuri or danda were used by the accused to commit the murder of the deceased---Evidence qua last seen had already been disbelieved---Said recoveries at the pointation of accused were highly doubtful and not believable---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aide convictions and sentences recorded by the Trial Court, in circumstances.

Ghulam Akbar and another v. The State 2008 SCMR 1064 rel.

(n) 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 the father of complainant---No motive had been described in the FIR by the prosecution, however, subsequently, the prosecution witnesses while making the improvements introduced motive part that accused disclosed before witnesses that he owed Rs.280000/- to deceased, who had repeatedly demanded return of said amount which he was unable to pay back that's why he committed his murder---No date, time and place of receiving of Rs. 280000/- from deceased by accused had been mentioned nor any witness had been produced in that respect before whom the said amount was handed over to the accused---No documentary proof had been produced by the prosecution to establish that the said amount was outstanding against the accused---No substantial piece of evidence had been led by the prosecution to prove the motive part of the occurrence---Prosecution had failed to prove the motive part of the occurrence---Circumstances established that the prosecution had failed to prove its case beyond shadow of doubt---Appeal was allowed and accused was acquitted by setting aide convictions and sentences recorded by the Trial Court, in circumstances.

(o) Criminal trial---

----Motive---Scope---Prosecution was not under obligation to establish the motive in every murder case---If prosecution set up a motive but failed to prove it, then, it was the prosecution who had to suffer and not the accused.

Muhammad Ilyas and another v. Ameer Ali and another 2020 SCMR 305; Liaqat Ali and another v. The State and others 2021 SCMR 780; Najaf Ali Shah v. The State 2021 SCMR 736 and Khalid Mehmood and others v. The State and others 2021 SCMR 810 rel.

(p) Criminal trial---

----Benefit of doubt---Principle---If there was a single circumstance which creats 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; Muhammad Imran v. The State 2020 SCMR 857 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 rel.

Abdul Khaliq Safrani, Muhammad Awais Riaz and Muhammad Shahbaz Sharif for Appellant.

Munir Ahmad Sial, D.P.G. for the State.

Imran Humayun Cheema and Khawaja Waseem Abbas for the Complainant.

2023 Y L R 926

[Lahore ((Bahawalpur Bench)]

Before Frooq Haider, J

MUHAMMAD SHABAN alias SHABANI and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 116-J and Criminal Revision No. 142 of 2011, heard on 3rd July, 2019.\

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

----Ss. 302(b), 394 & 34--- Qatl-i-amd, robbery, common intention---Appreciation of evidence---Benefit of doubt---Presence of complainant and witness at the place of occurrence was doubtful---Scope---Accused were charged for committing murder of the brother of the complainant by firing during robbery---Occurrence in the present case took place at about 8:30 p.m.---Matter was reported to the police through fard bayan got recorded at 10:15 pm by complainant at the spot, which was sent to the police station, whereas FIR was recorded at 11:20 pm---However, post-mortem examination over the dead body of the deceased was conducted with delay at 7:30 am next day and no reason for that delay had been explained by the prosecution---Police papers were prepared with delay, which ultimately caused delay in conducting post-mortem examination---Such situation further signalled that none of the cited eye-witnesses including the complainant was available at the place of occurrence and that time had been consumed by the prosecution for consultation, deliberation, inducing, procuring witnesses and then after tailoring false story, getting the case registered in its present forum--- Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

Haroon Shafique v. The State and others 2018 SCMR 2118 and case of Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068 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---Identification of accused was doubtful---Scope---Accused were charged for committing murder of the brother of the complainant by firing during robbery---In the present case, no source of light had been mentioned in fard bayan by the complainant except light of motorbike---Accused was not nominated in the said fard bayan, meaning thereby that he was not known to the complainant and other cited eye-witnesses till that time---High Court observed that in the stated axiomatic, panic and turmoil situation at the time of occurrence, momentary glimpse of the assailants in the light of motorbike, by any stretch of imagination could not be termed as sufficient for capturing images of the identifiable features of the assailants, to be made basis for their identification at any subsequent stage--- Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

(c) 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---Benefit of doubt---Test identification test---Scope---Accused were charged for committing murder of the brother of the complainant by firing during robbery---Most essential features for identification of human being were his facial features but in fard bayan and in the statements of witnesses, no facial features of any accused including the present accused were mentioned---Identification of the accused without facial features was near to impossible, thus, identification of the accused in identification parade was a futile exercise and of no help to the case of prosecution---Accused was nominated by the complainant through supplementary statement and challan report against him was submitted in the court---When accused was already nominated by complainant then there was no occasion for his identification parade after four years---Prosecution could not prove identification of the accused as one of the assailant, who committed the occurrence---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

Shahbaz Ahmad v. The State 2006 Cr.LJ 471 rel.

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

----Ss. 302(b), 394 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Benefit of doubt---Non-availability of justification for the presence of witnesses at the spot---Chance witness---Scope---Accused were charged for committing murder of the brother of the complainant by firing during robbery---Complainant and other cited eye-witnesses could not offer any valid reason of unimpeachable character regarding their presence at the place of occurrence---Said witnesses had claimed that they had gone to see their ailing relative but he was neither produced during the investigation nor during the trial to verify/corroborate their version in that regard---Eyes of the deceased had been mentioned as open in the column No. 8 of the inquest report---If complainant being real brother of the deceased was available at relevant time and place of occurrence, then he must had closed eyes of his deceased brother---In such state of affairs, ocular account had not been found as confidence inspiring and truthful, therefore, same was not reliable---Circumstances established that the prosecution had been failed to prove its case against the accused beyond shadow of 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)---

----Ss. 302(b), 394 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Benefit of doubt---Wajtakkar evidence---Scope---Accused were charged for committing murder of the brother of the complainant by firing during robbery---In the present case, the evidence of wajtakkar was produced by the prosecution through one witness---Such evidence had been found as mere concoction because in his statement recorded by court, witness stated that he had seen the accused including present accused 4½ months ago, whereas occurrence took place in the year 2005---Such piece of evidence had not been put to the accused under S. 342, Cr.P.C., therefore, same could not be used against the accused---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

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

----Ss. 302(b), 394 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Benefit of doubt---Joint extra-judicial confession---Scope---Accused were charged for committing murder of the brother of the complainant by firing during robbery-Record showed that extra-judicial confession was made by the accused before two witnesses---Stated by a witness himself that it was joint extra-judicial confession--- Joint extra-judicial confession was inadmissible evidence---Such evidence had not been put to the accused while examining him under S. 342 Cr.P.C, therefore, same could not be used against him otherwise it would hit by maxim audi alteram partem---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

Ameer Zeb v. The State PLD 2012 SC 380 and Imtiaz alias Taj v. The State and others 2018 SCMR 344 rel.

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

----Ss. 302(b), 394 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Benefit of doubt---Recovery of carbine from the accused---Reliance---Scope---Accused were charged for committing murder of the brother of the complainant by firing during robbery---In the present case, carbine was recovered from the possession of accused---Record showed that it had not been alleged in fard bayan that any assailant was carrying carbine---No empty was secured from the place of occurrence, therefore, said recovery, which even otherwise was got effected, after much delay, from an open and public place accessible to everyone and not from the exclusive possession/ ownership of the accused, was of no avail to the case of prosecution---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

Majeed alias Majeedi and others v. The State and others 2019 SCMR 301 rel.

Hassan Mehmood for Appellant along with Appellant (on bail).

Khalid Pervaiz Uppal, Deputy Prosecutor General for the State.

Complainant in person.

2023 Y L R 1002

[Lahore (Multan Bench)]

Before Raja Shahid Mehmood Abbasi and Sadiq Mahmud Khurram, JJ

ZULFIQAR and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 34-J and 48-J of 2016, heard on 30th March, 2021.

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

----Ss. 386, 506 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Extortion by putting person in fear of death or grievous hurt, criminal intimidation, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Delay of about three days in lodging the FIR---Effect---Accused was charged for demanding of "Bhatta" in the shape of Rs. 20 lac from complainant by sending a letter, else he and his family would be set at death---Admittedly complainant did not report the matter of receiving the threatening letter the day when he had ostensibly received the said letter---Matter was reported to police by complainant when oral statement was recorded by Investigating Officer---Complainant had admitted during cross-examination that he had given no reason for delay in reporting the matter to the police when the police station was at a distance of only one furlong from his residence---Such delay was fatal to the prosecution case---Appeals against conviction was allowed, in circumstances.

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

----Ss. 386, 506 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Extortion by putting person in fear of death or grievous hurt, criminal intimidation, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused was charged for demanding of "Bhatta" in the shape of Rs. 20 lacs from complainant by sending a letter, else he and his family would be set at death---Record showed that the threatening letter was not produced by complainant before the Investigating Officer---Investigating Officer admitted during cross-examination that he did not demand the production of threatening letter from complainant---Said letter was taken into possession by the Investigating Officer of the case after about three months of receiving of the same---Complainant and a witness also stated in their statements before the trial court that the threatening letter was produced before the Investigating Officer of the case the same day---Accused persons were arrested in the case, whereas the threatening letter was produced two days after the arrest of the accused persons---Said delayed production of the threatening letter two days after the arrest of the accused persons, was a circumstance sufficient on its own to raise abundant doubt with regard to the involvement of the accused in the case---High Court observed that dishonesty of the Investigating Officer of the case stand denuded and had repercussions entailing failure of the prosecution case---Appeals against conviction was allowed, in circumstances.

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

----Ss. 386, 506 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Extortion by putting person in fear of death or grievous hurt, criminal intimidation, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Dishonest and blatant improvements made by complainant---Scope---Accused was charged for demanding of "Bhatta" in the shape of Rs. 20 lac from complainant by sending a letter, else he and his family would be set at death---According to the prosecution evidence, initially the case was registered against unknown accused, however subsequently complainant nominated the accused persons as accused when his supplementary statement was recorded by the Investigating Officer of the case---Complainant however admitted during cross-examination that he had not stated in his statement recorded under S.161 of the Code of Criminal Procedure, 1898, that the accused confessed to have sent the threatening letter---Complainant in his examination-in-chief stated that he nominated the accused in the case because the said accused were in the custody of the police in a case of similar nature, however, during cross-examination complainant admitted that he had not stated so in his statement recorded under S. 161 of the Code of Criminal Procedure, 1898---Record showed that it was proved that complainant made dishonest and blatant improvements in his statement before the Trial Court, which impeached the credit of the said witness---Said improvements made by complainant were substantial and were made with regard to crucial aspects of the prosecution evidence---Complainant introduced dishonest, blatant and substantial improvements to his previous statements and was duly confronted with his former statement, hence his credit stand impeached and complainant could not be relied upon on being proved to have deposed with a slight, intended to mislead the court---Appeals against conviction was allowed, in circumstances.

Muhammad Ashraf v. State 2012 SCMR 419; Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Arif v. The State 2019 SCMR 631 rel.

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

----Ss. 386, 506 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 84---Extortion by putting person in fear of death or grievous hurt, criminal intimidation, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Comparison of writing with other document---Opinion of Hand writing Expert---Scope---Accused was charged for demanding of "Bhatta" in the shape of Rs. 20 lac from complainant by sending a letter, else he and his family would be set at death---Record showed that the accused was produced before Judicial Magistrate and the specimen of his handwriting was taken and handed over to the Investigating Officer of the case for its comparison with the threatening letter---As per report of the Forensic Science Agency, no conclusion could be drawn that the threatening letter was in the handwriting of the accused, which conclusively proved that the prosecution had failed to establish the charge against the accused---Appeals against conviction was allowed, in circumstances.

(e) Criminal trial---

----Benefit of doubt---Principle---For giving benefit of the doubt, it was not necessary that there should be so many circumstances rather if a single circumstance creating reasonable doubt in the mind of a prudent person was available then such benefit would be extended to an accused not as a matter of concession but as of right.

Muhammad Mansha v. The State 2018 SCMR 772 and Muqarab Khan v. The State 2009 SCMR 230 rel.

Prince Rehan Iftikhar for Appellants.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

2023 Y L R 1033

[Lahore (Multan Bench)]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD MADNI and 11 others---Petitioners

Versus

PROVINCE OF PUNJAB through District Officer Revenue, Lodhran and another---Respondents

Civil Revision No. 360-D of 2012, heard on 25th October, 2021.

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

----S. 39---Transfer of Property Act (IV of 1882), S. 54---Suit for cancellation of sale deed---Sale how made---Registered sale deed prior in time---Scope---Plaintiff filed suit against the defendant asserting therein that he was exclusive owner of the subject land and the sale deed maneuvered by the defendant was liable to be cancelled---Trial Court dismissed the suit whereas Appellate Court decreed the suit---Validity---Plaintiff as well as defendant had common vendor---Plaintiff was vendee of land pertaining to Khewat but the defendant had purchased the land from another Khewat---Sale deed in favour of defendant was executed in the year 1984 and the sale deed in favour of plaintiff was attested in the year 1985---Prior registered instrument had preference over the latter one until and unless the former was cancelled---Judgment and decree passed by Appellate Court were tainted with misreading and non-reading of evidence, which were quashed---Judgment passed by Trial Court was restored---Civil revision was allowed, in circumstances.

Abdul Rashid v. Muhammad Yaseen and another 2010 SCMR 1871 ref.

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

----S. 12---Transfer of Property Act (IV of 1882), S. 54---Specific performance of agreement to sell---Contract for sale---Scope---Decree for specific performance of sale agreement does not confer title until and unless it is blessed with the sale deed title document via execution proceedings.

Abdul Majid v. Nizam Din and others PLD 1959 Lah. 273; Muhammad Ishaq v. Muhammad Siddique PLD 1975 SC 909 and Abdur Rehman and 68 others v. Province of Punjab through Collector, Bahawalpur and 23 others 2009 YLR 753 ref.

Mian Anwar Mubeen Ansari for Petitioners.

Ahmed Nadeem Gehla, A.A.G. for Respondent No.1.

Malik Muhammad Tariq Rajwana and Malik Asif Rafique Rajwana for Respondent No. 2.

2023 Y L R 1045

[Lahore]

Before Aalia Neelum, J

MUHAMMAD IMRAN YOUNIS---Petitioner

Versus

MUHAMMAD JAMIL CHAUDHARY and 3 others---Respondents

Criminal Miscellaneous No. 7599-M of 2022 in Crl. Misc. No. 44970/B of 2021, decided on 8th February, 2022.

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

----S. 476---Penal Code (XLV of 1860), S. 471---Procedure in cases mentioned in Section 195---Using as genuine a forged document--- Scope--- Petitioner filed application under S. 476, Cr.P.C., against the respondents---Respondents, in their pre-arrest bail application, had took the plea that they had paid off entire amount to the petitioner in the presence of arbitrator and had placed on record the compromise deed, which was signed by the arbitrator---Arbitrator appeared before the court and stated that he had not signed the compromise deed---Validity---Name of the person who had thumb-marked and signed the compromise deed was not mentioned therein nor his CNIC (Computerized National Identity Card) was mentioned---Name of the arbitrator was not known nor was it mentioned in the order sheet---Nothing was available on record to show that the arbitrator was present before the court, therefore, there was nothing to show that he had knowledge of the fact that it was not a genuine document---Offence under S. 471, P.P.C., was not made out and there was no reasonable chance of respondents' conviction---Application was dismissed.

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

----S. 471---Using as genuine a forged document---Scope---Essential ingredients of S. 471, P.P.C. are fraudulent or dishonest use of a document as genuine and knowledge or reasonable belief on the part of the person using the document that same is a forged one.

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

----Ss. 464 & 465---Making a false document--- Forgery--- Scope--- Person bringing into existence a document, bearing a certain date, but brought into existence on a later date, by antedating it, or having forged signatures or thumb impressions of the executants of the documents or having different contents from the admitted document is guilty of the offence of forgery under S. 465, P.P.C.

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

----S. 471---Using as genuine a forged document---Scope---Section 471, P.P.C., applies not only in cases where the document has been given in evidence, but also in cases where it has been produced---Ambit of the word 'produced' is very wide, and includes documents filed or presented, but either rejected or not taken into account by the court.

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

----S. 476--- Procedure in cases mentioned in S. 195---Scope---Court, before setting the criminal law in motion, should exercise great care and caution and it must be satisfied that there is reasonable foundation for the charge in respect of which the prosecution is directed, and, no prosecution ought to be directed unless there is a reasonable probability of conviction---Words, "appears to have been committed", in S. 476, Cr.P.C., also show that the intention of the Legislature is that there must be sufficient material before the Court to show that an offence is likely to have been committed---Where there is no legal evidence which goes to show that there is reason to believe that an offence has been committed and where it is obvious that the prosecution is bound to end in a failure, a complaint ought not to be preferred.

Javed Naseem for Petitioner.

2023 Y L R 1106

[Lahore]

Before Muzamil Akhtar Shabir, J

ROSHAN DIN---Petitioner

Versus

RASHIDA ILYAS and 3 others---Respondents

Writ Petition No. 15138 of 2020, decided on 10th November, 2021.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.--- Constitution of Pakistan, Art. 199--- Constitutional petition---Maintenance of minor child---Grandfather, responsibility of---Petitioner was grandfather of respondent/minor granddaughter and aggrieved of maintenance allowance fixed by two Courts below upon him---Plea raised by petitioner was that Courts below did not determine his circumstances for such maintenance--- Validity--- Son of petitioner and father of respondent died in a road accident in a foreign country---Trial Court decided the matter on wrong premise by treating petitioner, who was defendant in the suit, as father of the minor and did not consider that he was the grandfather---Trial Court also did not take into consideration stance of both the parties, which it was required to do so, to provide fair trial to the parties---Prejudice was caused to rights of parties, especially to that of petitioner---High Court set aside judgments and decrees passed by two Courts below and remanded the matter to Trial Court for decision afresh--- Constitutional petition was allowed accordingly.

Muhammad Ramzan v. Ali Hamza and others PLD 2016 Lah. 622; Muhammad Nawazish Ali v. Family Judge and others 2021 CLC 1841 and Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another 2012 SCMR 1235 rel.

Ch. Shakeel Gondal for Petitioner.

Mrs. Zarish Fatima, Assistant Attorney General, Barrister Hassan Khalid Ranjha, A.A.G., Mateen ul Haq Chaudhry, Rana Muhammad Majid, and Ch. Shahid Iqbal for Respondents.

2023 Y L R 1136

[Lahore (Multan Bench)]

Before Sardar Muhammad Safraz Dogar, J

ZULFIQAR alias BHUTTA---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 155-B of 2022, heard on 27th January, 2022.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Qatl-i-amd, rioting, armed with deadly weapon and common object---Bail, grant of---Delay in conclusion of trial---Scope---Accused sought post arrest bail on statutory ground of delay in conclusion of trial---No delay in conclusion of the trial was found which could solely be attributed to the accused or to the person acting on his behalf reflecting a design or pattern to consciously delaying the conclusion of trial---Trial Court, on the basis of the report of process server, had observed that the complainant and private witnesses had concealed themselves in order to frustrate the legal process and their service seemed impossible through ordinary means---Prosecution had confirmed that there was no record of previous conviction of the accused---Accused had made out a case for his release on the statutory ground of delay in the conclusion of the trial---Petition for grant of bail was accepted.

Ali Akbar v. State and others PLJ 2021 SC (Cr.C) 106 and Muhammad Hussain v. State and others PLJ 2018 Cr.C. 730 rel.

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

----S. 497---Bail---Delay in conclusion of trial---Direction to Trial Court for expeditious disposal of case, violation of---Effect---Mere non-compliance of the directions issued to the Trial Court to conclude the trial expeditiously or within some specified time cannot be considered as valid ground for grant of bail to an accused, being alien to the provisions of S. 497, Cr.P.C., as the accused cannot claim bail on this ground as a matter of right but it is certainly a fresh ground to be assessed and examined by the Court for exercise of its discretion in either way, in the overall facts and circumstances of the case.

Tallat Ishaq v. National Accountability Bureau through Chairman and others PLD 2019 Supreme Court 112 ref.

Criminal Petition No. 1016-L of 2021 rel.

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

----S. 497---Bail---Delay in conclusion of trial---Scope---As per 3rd proviso to S. 497, Cr.P.C., a person accused of an offence punishable with death, if detained for such an offence for a continuous period exceeding two years shall be released on bail, of course, with the exception contained in the 4th proviso to S. 497, Cr.P.C. that the provisions of third proviso shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person, who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life.

Shakeel Shah v. The State 2022 SCMR 1 and Nadeem Samson v. The State PLD 2022 SC 112 rel.

Ch. Umar Hayat for Petitioner.

Muhammad Ali Shahab, D.P.G. for the State along with Khalil Ahmad, ASI.

2023 Y L R 1146

[Lahore]

Before Muhammad Waheed Khan, J

MUHAMMAD ZAHEER---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 1671-B of 2023, decided on 25th January, 2023.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 420, 468, 471, 109 & 34---Prevention of Corruption Act (II of 1947), S. 5---National Database and Registration Authority Ordinance (VIII of 2000), S. 30---Dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment, common intention---Corruption and corrupt practices---Bail, grant of---Accused persons, officials of Passport Office, were alleged to have issued passports to minors on the basis of fake B-Form---Passports in question were issued on the basis of FRC (Family Registration Certificate) issued by NADRA---Nothing was available on record to show that for preparation of passports in question, the accused persons had taken any illegal bribe---Accused persons were government officials, as such, there was no apprehension that they would abscond after getting bail---Investigating Agency had already collected the evidence, so, there was no chance of tampering with the prosecution evidence by the accused persons---Investigation had already been completed and report under S. 173, Cr.P.C., had been sent to the Trial Court---There was no prospect of earlier conclusion of the trial and the accused persons could not be kept behind the bars for an indefinite period without determining their guilt by the Court of competent jurisdiction---Accused persons were admitted to bail, in circumstances.

Arshad Hussain Yousafzai for Petitioner.

Hafeez Saeed Akhtar for Petitioners (in connected bail petitions Cr. Misc. Nos.4295-B and 4298-B of 2023).

Ms. Sophia Masood, Assistant Attorney General with Jamshaid Nadeem, Assistant Director Federal Investigating Agency (FIA).

2023 Y L R 1150

[Lahore]

Before Shahid Bilal Hassan, J

HARMOOZ KHAN and 5 others---Appellants

Versus

ABDUL AZEEM KHAN and 12 others---Respondents

Civil Revision No. 115692 of 2017 heard on 27th September, 2022.

Punjab Undesirable Cooperative Societies (Dissolution) Act (I of 1993)---

----S.17---Civil Procedure Code (V of 1908), S.9---Jurisdiction of Civil Court---Scope---Allegations mentioned in the plaint were regarding fraud and forgery which would only be decided after recording of evidence of the parties---In such secenario, the alleged bar contained in S. 17 of the Punjab Undesirable Cooperative Societies (Dissolution), Act, 1993, cannot take away the plenary jurisdiction enjoyed upon the civil Court under S. 9, C.P.C, in a situation where the aggrieved person finds himself remediless, particularly, when a dispute requires detailed evidence in order to resolve a factual controversy, as in the present case, because a specific plea fraud and forgery had been pleaded---Petitioners alleged fraud and forgery in their plaint, committed by respondents to transfer the land---Main grievance of the petitioner was against the other respondents and not the Cooperative body---In the matter in hand, the civil Court had jurisdiction to entertain the suit---Impugned order and decrees were set aside and case was remanded to the trial court to decide afresh after obtaining written statements, framing of issues and recording of evidence.

Messrs Sui Northern Gas Pipelines Limited (SNGPL) v. Messrs Noor CNG Filling Station 2022 SCMR 1501 ref.

Syed Moazzam Ali Shah for Petitioner.

Jawad Tariq Naseem for Respondent No. 13.

2023 Y L R 1175

[Lahore]

Before Asim Hafeez, J

MUHAMMAD AHMAD KHAN---Petitioner

Versus

PUNJAB BOARD OF REVENUE EMPLOYEES COOPERATIVE HOUSING SOCIETY LTD. and others---Respondents

Civil Revision No. 1210 of 2015 and C.M. No. 1-C of 2021, decided on 25th April, 2022.

Civil Procedure Code (V of 1908)---

----O. I, R. 10---Court may strike out or add parties---Necessary party---Scope---Petitioner was aggrieved of order whereby his application for permission to be impleaded as a party to appeal proceedings was dismissed---Contention of petitioner was that he was a necessary party; that he was claiming ownership based on two registered sale deeds and that the appellants in appeal proceedings were contesting acquisition proceedings---Validity---Nothing was available on record or alleged that any objection was raised to the acquisition proceedings, at the relevant time---Claim of alleged ownership was purportedly raised to interfere in the proceedings, which culminated through award---Merely because some dispute, if any, was pending regarding acquisition it was no reason for the petitioner to become party to the appeal---No illegality was found in the order when petitioner had failed to substantiate the relevance of his case in the context of O. I, R. 10, C.P.C.---Revision petition was dismissed.

Ch. Manzoor Hussain for Petitioner.

Muhammad Shahid lqbal for Respondent No.1.

Zafar Rahim Sukhera, Assistant Advocate-General for Respondents Nos. 2 to 5.

2023 Y L R 1182

[Lahore (Bahawalpur Bench)]

Before Safdar Saleem Shahid, J

MUHAMMAD SULEMAN and others---Appellants

Versus

MEMBER (JUDICIAL-II), B.O.R. and others---Respondents

Writ Petition No. 3463 of 2014, decided on 1st October, 2021.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S.19-A---Punjab Land Revenue Act (XVII of 1967), Ss.163(2) & 172(2)---Review filing of---Scope and limitation---Revenue authorities, jurisdiction of---Predecessor in interest "S.B" and "R.B." were shown as legal heirs of deceased and first mutation was sanctioned under the Colonization of Government Lands (Punjab) Act, 1912 and names of daughters were ignored while making the entries in the mutation---Petitioners filed review petition before Assistant Commissioner---Review petition was allowed and petitioners were declared legal heirs and their names were ordered to be entered as legal heirs in the said mutation---Petitioners filed appeal before the Additional Commissioner who accepted the appeal---Respondents filed revision petition before Member Board of Revenue which was accepted by Member Board of Revenue---Held, that case in hand, was a case of the correction of the revenue record that at the time of sanctioning of two different mutations of one deceased, different entries of his legal heirs were incorporated in the mutations---Said two mutations were not sanctioned at one time---Mutation which had been challenged was sanctioned in the year 1948, whereas, the other (second) mutation was sanctioned after two years of that mutation---Petitioners predecessor in interest remained alive as per record admittedly for about fifty years after the sanction of both the mutations but they did not challenge the mutations---Where a land was acquired under any scheme of Colonization of Government Lands (Punjab) Act, 1912 or the land was owned by the person and he was sole owner of the property by himself, if on his death the inheritance was devolved and some mutations were sanctioned, there was a specific procedure provided under S. 172 of Punjab land Revenue Act, 1967 for its review, if there were some entries made on the basis of some mistake or against the facts---Points of limitation and satisfaction of mutation of entitled predecessor in interest, who remained alive fifty years after the sanction of mutation and predecessor in interest, were not agitated---Said points were very important to be thrashed and the entries could not be thrashed without making the required inquiry which was only within the jurisdiction of Civil Court---Revenue authorities, could not inquire the matter as revenue authorities had been empowered only for the summary trial procedure---Matter agitated by the petitioners that the ladies' predecessor in interest had been deprived from their legal /Shariat right was very important to sort out but it had been pointed out that the parties also had filed their matters before the Civil Court and one of the matters was also pending before the Civil Court which was the proper forum to entertain and decide the grievance of both the parties---Correction of the entries in the revenue record and correction of the mutation after more than fifty years was not prerogative of the revenue authorities especially in the review petition, when the original persons, themselves had not agitated the matter in their life time--- Constitutional petition was dismissed, in circumstances.

(b) Colonization of Government Lands (Punjab) Act (V of 1912)---

----S.19-A---Right of inheritance of female---Section 19-A was inserted in the Colonization of Government Lands (Punjab) Act, 1912 ('the Act') in 1951 prior to sanction of succession mutations, in the present case, which were sanctioned under section 19 of the Act, where only male members were given the right to succeed the inheritance of the deceased---With the insertion of S.19-A in the Act the tenancy was to be devolved on the legal heirs in accordance with Muslim Personal Law/Sharia and the male and female, all the members were made entitled to inherit the property of deceased who was having the proprietary rights of the land under the Colonization of Government Lands (Punjab) Act, 1912---Constitutional petition was dismissed.

(c) Punjab Land Revenue Act (XVII of 1967)---

----S. 163(2)---Limitation for review petition---Period of ninety days for making application for review was provided by the Punjab land Revenue Act, 1967---Application filed after expiry of the limitation period could be dismissed on the ground of delay.

1999 YLR 1462; 2016 MLD 1793 and 2000 YLR 2888 rel.

(d) Punjab Land Revenue Act (XVII of 1967)---

----S. 172--- Fraud in sanctioning mutation---Exclusive jurisdiction of Civil Courts---Section 172 of the Land Revenue Act, 1967 barred the jurisdiction of the revenue authorities to review any document where there was allegation of fraud or misrepresentation in sanctioning of some mutation.

Sardar Muhammad and others v. Imam Bakhsh (deceased) through LRs and others 2021 SCMR 391 rel.

Syed Ghulam Shabir Shah for Petitioners.

Malik Shah Nawaz Kalyar, A.A.G. for Respondent-1.

Gulzar Ahmad Khan Durrani and Abid Ikram for Respondents Nos. 2 to 4.

2023 Y L R 1222

[Lahore]

Before Anwaarul Haq Pannun, J

NASIR SOHAIL AABID and others---Petitioners

Versus

Mst. AISHA BIBI through L.Rs. and others---Respondents

Civil Revision No. 1745 of 2010, heard on 25th March, 2022.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.115, O.XIV, Rr. 1, 2 & O. XVII, R.3---Suit for declaration and injunction--- Striking of defence---Preliminary issue---Mixed question of law and fact---Determination---Improper valuation of suit---Petitioners/plaintiffs were aggrieved of order striking of their defence by two Courts below on the ground that they had failed to produce their evidence on preliminary issue---Validity---If any issue had raised mixed question of law and facts, then for its decision, evidence was required to be led---Such issue could not be treated as preliminary or legal issue---Trial Court after framing issues had already offered parties to produce their evidence---Order in question treated a preliminary issue necessitating recording of piecemeal evidence where Trial Court acted in exercise of its jurisdiction illegally and with material irregularities---Entire evidence built thereon had to crumble---Lower appellate court also failed to take notice of such fact and failed to exercise its jurisdiction, vested with him by law to rectify wrong committed by Trial Court---Both the Courts below failed to consider such aspect of the case and on erroneous and wrong assumption dismissed suit of petitioners/plaintiffs---Issue of improper valuation was not considered as a formal defect and a suit could not be thrown away on the ground of improper valuation because valuation of subject matter of suit,both for the purposes of jurisdiction and payment of court fees, could be corrected by Court after recording of evidence---High Court in exercise of revisional jurisdiction under S. 115, C.P.C. set aside judgments and decrees passed by two courts below and remanded the matter to Trial Court for decision afresh---Revision was dismissed, in circumstances.

I.C.I.C. v. Mian Rafiq Saigol and others PLD 1996 Lah. 528;

Irshad Ali v. Sajiad Ali and 4 others PLD 1995 SC 629 and Sardar Muhammad Kazim Ziauddin Durrani and others v. Sardar Muhammad Asim Fakhuruddin Durrani and others 2001 SCMR 148

rel.

Rana Rashid Akram Khan and M. Shuja ul Hakeem for Petitioners.

Malik Tariq Ali Jindran for Respondents.

2023 Y L R 1261

[Lahore]

Before Asim Hafeez, J

PROVINCE OF THE PUNJAB and others---Appellant

Versus

MUHAMMAD KHAN (deceased) through legal heirs and others---Respondents

Civil Revision No. 2841 of 2011, decided on 1st March, 2022.

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

----Ss. 42 & 54---Suit for declaration and permanent injunction--- Grant of proprietary rights---Scope---Respondent filed a suit for declaration and permanent injunction wherein proprietary rights were claimed against the suit property, based on policy decision, offering land through sale by private treaty, to unauthorized occupants---Respondent alleged that he sought purchase of land under the policy decision but before any such sale was made, rights in land were transferred in favour of Punjab Housing Department---Trial Court dismissed the suit, however, Appellate Court decreed the same---Validity---Respondent had not established that payments were made as per conditions of the policy decision---Mere issuance of policy, when subjected to the fulfillment of terms and conditions, no enforceable right could be claimed---No legal basis was available for filing a suit for declaration, in the absence of any enforceable right---Respondent had filed application for seeking proprietary rights on the same day when the suit was filed---No right qua property was established, which entitled him from seeking decree of declaration in terms of S. 42 of the Specific Relief Act, 1877---Appellate Court had committed gross errors of law and misconstrued the evidence---Revision petition was allowed, judgment and decree passed by Appellate Court was set aside and that of Trial Court was affirmed.

(b) Pleadings---

----Parties cannot travel beyond the scope of pleadings and even evidence led outside the pleadings has no relevance and value.

Zafar Rahim Sukhera, Assistant Advocate General for Petitioner.

2023 Y L R 1283

[Lahore (Multan Bench)]

Before Abid Hussain Chattha, J

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, MULTAN through Chairman---Petitioner

Versus

MUHAMMAD AFZAL---Respondent

Civil Revision No. 50-D of 2022, heard on 19th October, 2022.

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

----S. 42---Limitation Act (IX of 1908), Art. 120---Suit for which no period of limitation is provided---Scope---Suit for declaration seeking change in date of birth in Matriculation certificate---Respondent submitted his admission forms himself by recording therein, his date of birth and pursuant to the same, the matriculation certificate was issued---Respondent acquiesced and accepted the same---Respondent claimed that cause of action arose four months prior to filing of suit when the petitioner declined the sought correction---No application for correction was on record---Matter was agitated much after the lapse of period of limitation---No condonation of delay was sought and there was no explanation as to why the respondent had not sought correction for such a long time from the date of issuance of matriculation certificate which was in the knowledge of the respondent---Right to sue accrued immediately for correction of date of birth after the issuance of matriculation certificate in case respondent was aggrieved from the same---Suit instituted by respondent was clearly barred by time---Revision was allowed and suit was dismissed.

Board of Intermediate and Secndary Education through Chairman and 3 others v. Javed Iqbal Bajwa 2005 YLR 2114 and Board of Intermediate and Secondary Education, Multan through Chairman v. Rana Ishfaq Ahmad and 3 others 2016 MLD 1723 ref.

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

----S. 42--- Suit for declaration seeking change in date of birth in Matriculation certificate---Matriculation certificate was regarded as an authentic document---Changes in the said document could only be allowed on the basis of cogent and irrefutable evidence when it becomes apparent that there was a bona fide, just and inadvertent mistake in recording of date of birth or any other personal particular---Educational record pertaining to personal particulars of a candidate is sacrosanct and its credibility, authenticity and genuineness is liable to be protected in the absence of any just and proper reason.

Chairman, Federal Board of Intermediate and Secondary Education v. Kumail Khan 2022 SCMR 912; Muhammad Arshad and another v. Mian Noor Ahmad and others 2008 SCMR 713 and Abdul Khaliq and another v. Maulvi Muhammad Noor and others PLD 2005 SC 962 ref.

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

----S. 115--- Revisional jurisdiction---Concurrent finding of fact---Setting aside of---High Court does not interfere in the concurrent findings of fact recorded by the Courts below but, when it is evident that evidence on record was misread or non-read, interference was warranted to correct the jurisdictional errors or miscarriage of justice.

Muhammad Ali Siddiqui for Petitioner.

Ali Akhtar Bodla for Respondent.

2023 Y L R 1329

[Lahore]

Before Shahid Bilal Hassan, J

Mst. SHAHNAZ SHAFIQ and 2 others---Petitioners

Versus

Mst. GULNAR KHALID and 4 others---Respondents

Civil Revision No. 19610 of 2021, decided on 6th July, 2022.

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

---O. XII, R. 6---Mental Health Ordinance (VIII of 2007), Preamble---Gift---Proof---Judgment on admission---Respondents instituted suit for declaration against the petitioner and remaining respondents before Trial Court---Petitioner also filed a suit for declaration with permanent injunction against the respondents and sought cancellation of gift deed alleging that same was obtained through fraud---One of the respondents made an application under O.XII, R. 6, C.P.C. before Trial Court for passing a judgment and decree in her favour---Trial Court dismissed the said application---Appellate Court directed the Trial Court to decide the contention of respondent---Trial Court decreed the suit of respondents---Held, that in case in hand there was no denial to the factum that the disputed house was owned by "S.A.", deceased father of the parties, who gifted out the same to the respondent through gift deed---When respondent instituted a suit for declaration, on refusal of her entitlement, father of respondent i.e. "S.A.", the donor ,appeared before Trial Court and in a categorical and unambiguous way recorded his detailed statement on oath in favour of respondent and the Trial Court had reproduced the said statement of deceased "S.A." in the impugned judgment in verbatim---In case in hand "S.A.", father of the parties appeared before the Trial Court and after recording his categorical detailed statement, he again appeared in presence of counsel for the parties and the Trial Court, on the said date, cross questioned him in order to ascertain his mental condition and soundness of his mind---Observation regarding the mental soundness of "S.A." recorded by Trial Court had not been challenged before any forum at the relevant time and even the petitioners did not move any application before the competent forum under Mental Health Ordinance, 2001, seeking declaration of unsoundness or soundness of "S.A.", because oral substance had no value, especially when the said person while appearing before the Trial Court twice on different dates with a gap of almost two years, did not seem to be of unsound mind---Statement of "S.A." in a categorical manner stated that he was affectionate and kind father towards his children and he had already transferred valuable properties in the names of his sons and daughters and had gifted out the disputed house in lieu of services to his widowed daughter "G.A."/plaintiff---Such part of statement of the deceased "S.A." had not been denied by the present petitioners or other respondents---Civil revision was dismissed, in circumstances.

(b) Gift---

----Proof---Gift deed written on non-stamp paper---Effect---In case in hand, objection regarding the registered gift deed having been written on a non-stamp paper and adhesive stamps were pasted was concerned, after admission on the part of the donor deceased "S.A." by appearing before the Trial Court, the said objection losts its significance---Civil revision was dismissed, in circumstances.

G. R. Syed v. Muhammad Afzal 2007 SCMR 433 and PLD 2007 Lah. 93 rel.

Zafar Abbas Khan for Petitioners (as well as in connected C.R. No. 24020 of 2021).

Qasim Hassan Buttar for Respondent No.1/Plaintiff and (in C.R. No.10730 of 2021).

Zawar Ahmad Sheikh for Respondent No.2/Petitioner (in connected C.R. No. 10730 of 2021 and C.R. No. 12562 of 2021).

Sahabzada Muzaffar Ali, for Lahore Development Authority.

2023 Y L R 1341

[Lahore]

Before Muzamil Akhtar Shabir, J

MUHAMMAD BASHIR---Petitioner

Versus

Syed IMDAD ALI SHAH--- Respondent

Civil Revision No. 6746 of 2020, decided on 24th November, 2022.

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

----O. XXXVII, R. 3---Suit for recovery of money on the basis of pronote---Petitioner filed application for leave to defend the suit without affidavit---Trial court dismissed his application---Validity---Court had to consider the application for leave to defend on the basis of affidavit relating to facts submitted by the applicant and not otherwise---Exception to said legal position would be that the claim of the applicant to obtain leave to defend was based on question of law only and not on the basis of any disputed fact, then affidavit might not be required to be filed as the Court was always competent to decide the questions of law as same only requires interpretation of law---However, in the present case, the petitioner disputed claim on factual ground that cheques were issued as guarantee and had been misused which plea was required to be supported by an affidavit attached with the application for leave to defend but the same had not been filed---Trial Court was justified to dismiss the application for leave to defend---Petition was dismissed.

Muhammad Imran Hafeez v. Naveed Ali 2015 CLC 1747; Raja Zahid Hussain v. Director-General National Housing Authority, Islamabad and 2 others 2005 YLR 1521 and Messrs Bilour Match Industries v. Messrs Paper World (Pvt.) Ltd. 2012 YLR 2277 rel.

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

----S. 3---Civil Procedure Code (V of 1908), O.XXXVII, R.3---Suit for recovery of money on the basis of pronote---Dismissal of suit instituted after period of limitation---Scope---Court while determining the question of limitation, which is a mixed question of law and facts may require affidavit to be attached with the application for leave to defend, if the said question is to be determined by the resolution of some disputed facts---However, if for resolution of said question of limitation, decision has to be made on admitted facts or facts which are not disputed then the Court on its own can determine the said question of limitation even if not raised by any party whether leave to defend has been granted or not.

Amir Munir Bagri for Petitioner.

2023 Y L R 1362

[Lahore (Multan Bench)]

Before Anwaar Hussain, J

MEHMOOD IDREES---Petitioner

Versus

KHALID HUSSAIN and 2 others---Respondents

Writ Petition No. 9926 of 2021, heard on 20th October, 2021.

Punjab Partition of Immovable Property Act, 2012 (IV of 2013)---

----Ss. 7 & 8---Mesne profits---Question of title---Respondent/plaintiff filed suit for partition of suit property as co-sharer of joint property in possession of petitioner / defendant--- Courts below directed petitioner/defendant to deposit interim mesne profit---Plea raised by petitioner/defendant was that respondent/ plaintiff did not have title in suit property---Validity---Discretion under S. 7 of Punjab Partition of Immovable Property Act, 2012, was vested in Trial Court to determine mesne profits at the first date of hearing pending adjudication of the suit whereas S. 8 of Punjab Partition of Immovable Property Act, 2012, had made it imperative upon Court to decide the issue to title or dispute before proceeding further in the suit---Such would be against the intention of the Legislature and object of Punjab Partition of Immovable Property Act, 2012 to circumscribe or put a lid of S. 8 of Punjab Partition of Immovable Property Act, 2012, on the discretion vested in Trial Court under S. 7 of Punjab Partition of Immovable Property Act, 2012, by the Legislature---Purpose was that the Court considering facts of each case could direct deposit of interim mesne profits or deny the same pending adjudication of suit to safeguard a party not in possession---Such discretion was to be exercised in a judicial manner by Trial Court in each case depending upon prima facie positions of parties with respect to co-ownership---Respondent/ plaintiff was co-owner with equal share as per Jamabandi for the year 2001-2002, which had made it a prima facie case in favour of respondent/plaintiff---Lower Appellate Court in exercise of revisional jurisdiction had rightly held that Trial Court failed in exercising its discretion in a judicial manner---If upon final adjudication of the matter, petitioner/defendant would succeed to establish his case regarding his real and sole ownership, amount so deposited as mesne profits could always be decreed in his favour---If petitioner/defendant would fail and order under S. 7 of Punjab Partition of Immovable Property Act, 2012, was not in field, respondent/ plaintiff would be deprived of his due share thus constraining him to initiate further proceedings for execution/ recovery of the same---Equity also leaned in favour of respondent/plaintiff and Lower Appellate Court in exercise of revisional court rightly exercised the discretion, which required determination of interim mesne profits under S. 7 of Punjab Partition of Immovable Property Act, 2012, before proceedings further in the matter---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Lucky Kochuvareed v. P Mariappa Gounder and others AIR 1979 SC 1214; Haji Chaseetu and 9 others v. Sarwar Khan 1990 MLD 1368; Malik Riazullah v. Mst. Dilnasheen and others 2018 CLC 1569 and Sultan Ahmad Sheikh v. GETZ Pharma (Pvt.) Ltd. through Chief Executive Officer 2011 MLD 1944 ref.

Tariq Zulfiqar Ahmed for Petitioner.

Tariq Muhammad Iqbal Chaudhry for Respondent No.1.

2023 Y L R 1418

[Lahore]

Before Malik Shahzad Ahmad Khan and Muhammad Amjad Rafiq, JJ

MUHAMMAD YAQOOB---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 236652 of 2018, heard on 20th June, 2022.

(a) Criminal trial---

----Circumstantial evidence--- Scope---Every circumstance should be linked with each other and it should form such a continuous chain that its one end touches the dead body and the other the neck of the accused---If any link in the chain is missing then its benefit will go to the accused.

Ch. Barkat Ali v. Major Karam Elahi Zia and another 1992 SCMR 1047; Sarfraz Khan v. The State 1996 SCMR 188; Asadullah and another v. The State 1999 SCMR 1034 and Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 rel.

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

----Ss. 302(b), 363 & 377---Qatl-i-amd, kidnapping, unnatural offence---Appreciation of evidence---Benefit of doubt--- Extra-judicial confession---Scope---Prosecution case was that accused allegedly kidnapped the minor son of complainant, committed unnatural offence and then murdered him---Allegedly, accused made extra-judicial confession before complainant and a witness---Notably, the accused was not nominated in the FIR and he had been implicated in the case through the supplementary statement of the complainant---Occurrence in the case took place on 26.09.2015 and the FIR was lodged on 27.09.2015, whereas, the supplementary statement of the complainant was recorded on 30.03.2016 i.e., after about six months from the occurrence and the registration of the FIR---In the supplementary statement, complainant and a witness stated that on 30.03.2016, accused appeared before them and the given up witness, when they were present outside the house of the complainant and he made extra-judicial confession before them by stating that he had a burden on his mind therefore, he wanted to tell the occurrence to the complainant party---Accused further stated before the witnesses that minor deceased came to his shop for taking toffees and he took the minor inside the house, where he committed sodomy with him and killed him by strangulating his neck---Accused further stated that after committing the murder of minor, he packed his dead body in a sack and after loading the said body on his bicycle, he threw the same in a drain---As per Forensic Science Agency Report, no seminal material was detected on the anal swabs of the deceased to support the prosecution case---Moreover, there were contradictions in the statements of the prosecution witnesses of extra-judicial confession because one of the witnesses had stated that the accused allegedly confessed that after pressing the throat of minor, he dipped him in a water tub due to which he died but such fact was not stated by complainant---Complainant party comprised of three male adult members/witnesses and according to the evidence of said prosecution witnesses, the accused made extra-judicial confession regarding the murder of their kith and kin after about six months of the occurrence but they did not try to apprehend the accused at the time of making of his extra-judicial confession so as to hand him over to the police---No reason existed for the accused to make extra-judicial confession before the said witnesses---According to the alleged extra-judicial confession of the accused before the said prosecution witnesses, dead body of minor deceased was packed in a sack after his murder and thereafter, the same was thrown in a drain but according to the statement of Official Witnesses dead body was not packed in the sack and the same was lying open in the drain---No sack had been recovered in the case---Although according to the evidence of the prosecution, dead body of the deceased was thrown by the accused in a drain but Medical Officer did not mention in his evidence the presence of any mud or particles of drain on the body of the deceased---Thus, the prosecution evidence qua extra-judicial confession of the accused was not worthy of reliance---Circumstances established that the prosecution failed to prove its case against the accused beyond the shadow of doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b), 363 & 377---Qatl-i-amd, kidnapping, unnatural offence---Appreciation of evidence---Benefit of doubt---Judicial confession and extra-judicial confession---Contradictions---Prosecution case was that accused allegedly kidnapped the minor son of complainant, committed unnatural offence and then murdered him---As per prosecution case, accused made judicial confession before Judicial Magistrate---Notably there were material contradictions in the prosecution case between the judicial confession made by the accused in the Court and the extra-judicial confession made by the accused before the prosecution witnesses---According to the judicial confession, the accused stated that he attempted to commit sodomy with minor deceased, whereas, as per statements of the witnesses of extra-judicial confession, the accused stated that he committed sodomy with the minor and thereafter, committed his murder---Further according to the statement made by the accused in his judicial confession, the mouth of the deceased was blocked by him with his hands due to which he died, whereas, according to the statements of the prosecution witnesses of extra-judicial confession, neck of the deceased was strangulated by the accused, whereas, according to the statement of witness, the accused, after strangulating the neck of minor deceased, drowned him in a water tub due to which he died but complainant did not state so in his statement recorded by the Trial Court and no such fact was mentioned by the accused in his judicial confession that after pressing the neck of minor deceased, he drowned him in a water tub---Circumstances established that the prosecution failed to prove its case against the accused beyond the shadow of doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b), 363 & 377---Criminal Procedure Code (V of 1898), S. 164---High Court (Lahore) Rules and Order, Vol. III, Chap. 13, R. 5---Qatl-i-amd, kidnapping, unnatural offence---Appreciation of evidence---Benefit of doubt---Judicial confession, recording of---Legally---Prosecution case was that accused allegedly kidnapped the minor son of complainant, committed unnatural offence and then murdered him---Record showed that at the time of judicial confession, the accused was not told by the Judicial Magistrate that his custody would not be handed back to the police after recording of his confession which was in violation of Vol. III Chap. 13, R. 5 of the High Court (Lahore) Rules and Order on the subject---Although Judicial Magistrate stated that after recording of the confession of the accused under S. 164, Cr.P.C., he did not hand over his custody to the police rather the accused was sent to jail through staff of the Court but he was unable to tell the name of any member of his staff who handed over the custody of the accused to the jail authorities---On the other hand, Investigating Officer stated that he took the accused to jail---Circumstances established that the prosecution failed to prove its case against the accused beyond the shadow of doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b), 363 & 377---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, kidnapping, unnatural offence---Appreciation of evidence---Benefit of doubt---Recording of judicial confession---Contradictions--- Prosecution case was that accused allegedly kidnapped the minor son of complainant, committed unnatural offence and then murdered him---In the judicial confession of the accused, it had been stated by the accused that after five days of the occurrence, the dead body of the deceased was recovered on his pointation---On the other hand, according to the prosecution case, the dead body of minor deceased was recovered on 02.10.2015, as stated by complainant, as well as by Investigating Officer and they did not state that the dead body was recovered on the pointation of the accused rather the accused had been implicated in the case through supplementary statement of the complainant on 30.03.2016, i.e., after more than six months of the occurrence---As per prosecution's own case, the dead body of minor was recovered on 02.10.2015, Investigating Officer---None of the prosecution witnesses stated that the dead body of the deceased was recovered on the pointation of the accused---Further no specific date or year of the occurrence had been mentioned in the judicial confession of the accused---Circumstances established that the prosecution failed to prove its case against the accused beyond the shadow of doubt---Appeal against conviction was allowed accordingly.

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

----S.164---Judicial confession---Scope---Mere judicial confession of an accused by itself is not sufficient to maintain his conviction and sentence---Judicial confession needs independent corroboration.

Muhammad Ashraf v. The State 2016 SCMR 1617; Muhammad Ismail and others v. The State' 2017 SCMR 898 and Hashim Qasim and another v. The State 2017 SCMR 986 rel.

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

----Ss. 302(b), 363 & 377---Qatl-i-amd, kidnapping, unnatural offence---Appreciation of evidence---Medical evidence---Prosecution case was that accused allegedly kidnapped the minor son of complainant, committed unnatural offence and then murdered him---According to the medical evidence, eight swabs were sent to the Forensic Science Agency for detection of seminal and DNA test but according to the report of Forensic Science Agency, no seminal material was detected on the rectal swabs of deceased---Investigating Officer took nail scraping of deceased and the same was sent to Forensic Science Agency and according to its report, nail scraping of the deceased was mixture of at least two unknown male individuals, whereas, accused and his nephew were eliminated as being contributors to the said DNA profile---Thus, the medical evidence and the reports of Forensic Science Agency had not supported the prosecution case against the accused---Circumstances established that the prosecution failed to prove its case against the accused beyond the shadow of doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b), 363 & 377---Qatl-i-amd, kidnapping, unnatural offence---Appreciation of evidence---Benefit of doubt---Recoveries of bicycle and water tub on the pointation of accused---Reliance---Prosecution case was that accused allegedly kidnapped the minor son of complainant, committed unnatural offence and then murdered him---Insofar as the recoveries of bicycle and water tub on the pointation of the accused was concerned, it was noteworthy that no incriminating material like blood stains or froth of the deceased were recovered from the said articles---Moreover, said articles were not sent to the office of Forensic Science Agency for detection of any incriminating material on them---Further complainant had admitted during his cross-examination that brother of the accused also lived in the same house wherefrom the said articles were recovered which showed that the house of the recovery was not exclusively under the possession of the accused---No ownership proof about the said bicycle in the name of the accused had been brought on the record---Under the circumstances, the said recoveries were of no avail to the prosecution---Circumstances established that the prosecution failed to prove its case against the accused beyond the shadow of doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b), 363 & 377---Qatl-i-amd, kidnapping, unnatural offence---Appreciation of evidence---Benefit of doubt---Accused pointing out the place of occurrence and place of throwing dead body of the deceased---Reliance---Prosecution case was that accused allegedly kidnapped the minor son of complainant, committed unnatural offence and then murdered him---Prosecution had alleged that the place of crime and place where the dead body of the deceased was thrown had been pointed out by the accused but no incriminating material was recovered from the place of occurrence, as well as from the place where the dead body of the deceased was allegedly thrown---Further according to the prosecution case, on 22.04.2016, the accused pointed out the place of throwing of the dead body of minor deceased, whereas, the dead body was already recovered on 02.10.2015 and as such, the place of throwing of the dead body was already in the knowledge of the prosecution and no new fact was discovered or any recovery was effected from the said places---Thus, the said pieces of evidence were inconsequential for the prosecution case---Circumstances established that the prosecution failed to prove its case against the accused beyond the shadow of doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b), 363 & 377---Qatl-i-amd, kidnapping, unnatural offence---Appreciation of evidence---Benefit of doubt---Motive not proved---Scope---Prosecution case was that accused allegedly kidnapped the minor son of complainant, committed unnatural offence and then murdered him---Motive behind the occurrence was that the accused committed sodomy with deceased and thereafter killed him---Notably there were material contradictions in the statements of prosecution witnesses regarding the motive---As per evidence of witnesses of extra-judicial confession, the accused made confession before the witnesses that he committed sodomy with the deceased and then killed him, whereas, in the judicial confession, the accused stated that he attempted to commit sodomy with the deceased---Moreover, as per medical evidence, no seminal material was detected on the anal swabs of the deceased---Thus, the prosecution had failed to prove the alleged motive in the case---Circumstances established that the prosecution failed to prove its case against the accused beyond the shadow of doubt---Appeal against conviction was allowed accordingly.

(k) Criminal trial---

----Benefit of doubt---Principle---Single circumstance creating doubt regarding the prosecution case will 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.

Muhammad Shahid Khan and Rizwan Afzal Tarar for Appellant.

Waqar Abid Bhatti, Deputy Prosecutor General for the State.

Ch. Liaqat Ali Anjum and Ch. Moazzam Tufail Gujjar for the Complainant.

2023 Y L R 1447

[Lahore (Rawalpindi Bench)]

Before Ch. Abdul Aziz, J

AZEEM KHAN and another---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous No. 501-B of 2023, decided on 3rd April, 2023.

Criminal Procedure Code (V of 1898)---

----S.497---Foreign Exchange Regulation Act (VII of 1947), Ss. 5, 8 & 23---Restriction on payments---Restrictions on import and export of certain currency and bullion---Bail, grant of---Federal Investigation Agency conducted a raid to stop the illegal business of Hawala/ Hundi, apprehended suspects, and confiscated incriminating evidence, such as registers, cheque books, credit cards, bank deposit slips, CNICs, Afghan Citizen Cards, and a large sum of Pakistani currency---Premises where the articles were found belonged to the main perpetrators, while the accused were working there as low-wage employees---No unusual financial transactions were found in the accused persons' bank accounts---Although documents and registers indicating Hawala/Hundi business were found, the origin of the handwriting was not investigated---Offense under S. 23 of the Foreign Exchange Regulation Act, 1947, had a maximum penalty of up to five years, which did not attract the prohibitory clause of S. 497, Cr.P.C.---In such like cases, an accused person could be granted bail post-arrest if no exceptional circumstances were found against him on record---High Court found no such exceptional circumstances to deny the accused persons the concession of post-arrest bail which was allowed, in circumstances.

Arshad Hussain Yousafzai and Aitazaz Ahmed Khan for Petitioner.

2023 Y L R 1461

[Lahore]

Before Malik Shahzad Ahmad Khan and Muhammad Waheed Khan, JJ

SAMI ULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 258898-J and Murder Reference No. 390 of 2018, heard on 18th January, 2023.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Promptly lodged FIR---Accused was charged for committing murder of the father of complainant by firing---Occurrence in the case took place on 20.05.2017 at 06:00 a.m.---Matter was reported to the police on the same day through complaint and the FIR was also lodged on the same day i.e. on 20.05.2017 at 08:30 a.m., i.e., within a period of 02 hours and 30 minutes from the occurrence---Distance between the police station and the place of occurrence was 8-miles---Even the postmortem on the dead body of deceased was conducted on the same day on 20.05.2017 at 12:30 p.m. within a period of 06 hours and 30 minutes from the occurrence---Keeping in view the time of occurrence, the place of occurrence, its distance from the police station and the time of postmortem examination of deceased, it was of the view that there was no deliberate or conscious delay in reporting the matter to the police or in conducting the postmortem examination on the dead body of deceased---Circumstances established that the prosecution had proved its case against the accused, however, due to some mitigating circumstances, the conviction was maintained but sentence awarded to the accused was altered from death to imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---False implication of accused unlikely---Accused was charged for committing murder of the father of complainant by firing---Record showed that complainant was son of deceased whereas eye-witness was brother-in-law of the deceased---Keeping in view the relationship of the eye-witnesses with deceased of the case, it was of the view that substitution in such like cases was a rare phenomenon because it was not expected by the near kith and kin of the deceased person to falsely implicate innocent person in the murder case of their near relative and to let off the real culprit---Both the said eye-witnesses were cross-examined at length but their evidence could not be shaken---Said witnesses corroborated each other on all material aspects of the case---Evidence of said witnesses was confidence inspiring and trustworthy---As the occurrence took place in the broad day light therefore, there was no chance of any mis-identification of the accused in the case---Circumstances established that the prosecution had proved its case against the accused, however, due to some mitigating circumstances, the conviction was maintained but sentence awarded to the accused was altered from death to imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular account supported by medical evidence---Accused was charged for committing murder of the father of complainant by firing---Ocular account furnished by complainant and eye-witness had been fully supported by the medical evidence produced through Medical Officer who conducted the postmortem examination on the dead body of deceased within a period of 06 hours and 30 minutes from the occurrence---Although it was objected by defence that there was conflict between the ocular account and medical evidence of the prosecution because as per ocular account of the prosecution, deceased received four (04) firearm injuries, whereas, according to the medical evidence and postmortem report, there were five (05) injuries on the body of the deceased but it was noteworthy that one (01) out of the five (05) injuries mentioned by the Medical Officer i.e., injury No. 1 was a grazing wound on the right arm of deceased, whereas, injury No.2 was on the right armpit of the deceased---So it was evident that injuries Nos. 1 and 2 were result of the same fire shot---Even the prosecution witnesses stated that first fire shot made by the accused after hitting right arm of deceased landed at his right armpit---Moreover, an eye-witness was not expected to give photo picture of each and every injury sustained by the deceased, with exactitude in the state of panic and sensation created at the time of occurrence due to the firing of accused---Circumstances established that the prosecution had proved its case against the accused, however, due to some mitigating circumstances, the sentence awarded to the accused was altered from death to imprisonment for life---Appeal was dismissed with said modification in sentence.

Abdur Rauf v. The State and another 2003 SCMR 522 and Ellahi Bakhsh v. Rab Nawaz and another 2002 SCMR 1842 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive not proved---Effect---Accused was charged for committing murder of the father of complainant by firing---According to the prosecution witnesses, the accused committed the occurrence due to his quarrel with the son of deceased but no detail of the said quarrel like date, time and place had been mentioned by any prosecution witness---Noteworthy that no reason of the alleged quarrel between the parties had been given by any of the prosecution's witnesses---Vague and general statement had been made by the prosecution witnesses regarding the motive part of the occurrence---Thus, the motive alleged by the prosecution had not been proved in the case---However, if the prosecution evidence qua motive was excluded from consideration, even then sufficient incriminating evidence was available on record to prove the prosecution case against the accused---Circumstances established that the prosecution had proved its case against the accused, however, due to some mitigating circumstances, the conviction was maintained but sentence awarded to the accused was altered from death to imprisonment for life---Appeal was dismissed with said modification in sentence.

(e) 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 father of complainant by firing---Record showed that rifle .222 bore was recovered from the possession of accused---Notable, the Investigating Officer had taken into possession six empties from the spot on the day of occurrence, whereas, rifle .222 bore was allegedly recovered from the possession of accused however, report of Forensic Science Agency in respect of the recovery was in the negative and the empties recovered from the spot could not be found to be fired from the rifle .222 bore, recovered on the pointation of accused---Thus, alleged recovery of .222 bore rifle on the pointation of the accused was inconsequential and no benefit could be extended to the prosecution on account of said recovery---However, if the prosecution evidence qua recovery of rifle .222 bore was excluded from consideration, even then sufficient incriminating evidence was available on record to prove the prosecution case against the accused---Circumstances established that the prosecution had proved its case against the accused, however, due to some mitigating circumstances, the conviction was maintained but sentence awarded to the accused was altered from death to imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Motive not proved--- Recovery of weapon in consequential---Accused was charged for committing murder of the father of complainant by firing---Record showed that prosecution had set a motive against accused but had failed to prove the same---Recovery of rifle .222 bore on the pointation of the accused had been disbelieved---Under the said circumstances, the death sentence awarded to the accused was quite harsh and the sentence of imprisonment for life would meet the ends of justice---Thus, the conviction was maintained but sentence awarded to the accused was altered from death to imprisonment for life---Appeal was dismissed with said modification in sentence.

Barrister Danyal Ijaz Chadhar for Appellant.

Munir Ahmad Sial, Deputy Prosecutor General for the State.

Tayyab Shaheen Dhillon and Malik Ahmad Nawaz Awan for the Complainant.

2023 Y L R 1521

[Lahore (Multan Bench)]

Before Anwaar Hussain, J

HAYYAT ALI through legal heirs and others---Petitioners

Versus

Mst. KHATOON BEGUM through L.Rs. and 2 others---Respondents

Civil Revision No. 419-D of 2018, heard on 25th October, 2022.

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

----Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), Arts. 17, 70, 79 & 80---Civil Procedure Code (V of 1908), O.I, R.10---Suit for declaration and injunction---Transfer by illiterate and Paradahnashin lady---Revenue officials, non-impleading of---Effect---Predecessor-in-interest of petitioners/defendants was real brother of respondent/plaintiff, who alleged that her brother had fraudulently got her land mutated in his name---Suit filed by respondent/plaintiff was dismissed by Trial Court but Lower Appellate Court decreed the same in her favour---Validity--- Predecessor-in-interest of petitioners/defendants was the beneficiary of mutation in question and failed to produce cogent, reliable and confidence inspiring evidence as per mandate of Art. 17 read with Arts. 70, 79 & 80 of Qanun-e-Shahadat, 1984--- As beneficiary of mutation in question, no attempt was made by petitioners/ defendants to get comparison of thumb impression of respondent/plaintiff even before Trial Court or Lower Appellate Court---Such fact had gone against petitioners/respondents--- Respondent/ plaintiff was not bound to file any application for comparison of her thumb impression, as burden to prove transaction was on petitioners/defendants, who were beneficiaries and not on the respondent / plaintiff---Impleading revenue officials in every case was not a rule of thumb---In case revenue officials were not impleaded by the parties, they could always be summoned by either side or, if considered necessary, even as Court witnesses---Purpose of arraying revenue officials as party in such like cases was to provide them an opportunity to participate and put forth their defence against allegation of fraud---High Court declined to interfere in judgment and decree passed by Lower Appellate Court as the same was in accordance with law and was not irregular or erroneous---Revision was dismissed, in circumstances.

Muhammad Yaqoob v. Hameeda Begum and 4 others 2005 CLC 870; Mst. Phaphan through L.Rs. v. Muhammad Bakhsh and others 2005 SCMR 1278; Muhammad Amir and others v. Mst. Beevi and others 2007 SCMR 614; Jamila Khatoon and others v. Aish Muhammad and others 2011 SCMR 222; Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs PLD 2011 SC 657; Shah Muhammad v. Mst. Khurshid Begum and others 2016 MLD 135; Muhammad Bakhsh through Legal Heirs v. Muhammad Shafi and 8 others 1997 SCMR 1218; Muhammad Iqbal and another v. Mukhtar Ahmad through L.Rs. 2008 SCMR 855; Chaudhry Manzoor Ahmed through Legal Representatives and another v. Faisal Manzoor and 5 others 2016 YLR 671; Ghulam Farid and another v. Sher Rehman through LRs. 2016 SCMR 862; Muhammad Yaqoob v. Mst. Sardaran Bibi and others PLD 2020 SC 338; Faqir Ali and others v. Sakina Bibi and others PLD 2022 SC 85; Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Ghulam Muhammad v. Zohran Bibi and others 2021 SCMR 19; Khair Din v Mst Salaman and others PLD 2002 SC 677; Farhan Aslam and others v. Mst. Nuzba Shaheen and another 2021 SCMR 179; Enayat Sons (Pvt.) Ltd. v. Government of Pakistan through Secretary, Finance and others 2007 SCMR 969 and Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398 ref.

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

----Arts. 117 & 120---Punjab Land Revenue Act (XVII of 1967), S. 42---Mutation, assailing of---Plea of fraud---Onus to prove---Any person who claims title through a mutation and said mutation is challenged, the burden of proof regarding transaction embodied in the mutation is upon such person---Mutation by itself does not confer any title and beneficiary is bound to revert to original transaction and prove the same.

Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729 and Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688 rel.

Kanwar Intizar Muhammad Khan and Rao Riyasat Ali Khan for Petitioners.

Muhammad Khalid Mahmood Ayaz for Respondents.

2023 Y L R 1537

[Lahore (Bahawalpur Bench)]

Before Sadiq Mahmud Khurram and Safdar Saleem Shahid, JJ

MUHAMMAD AYAZ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 138-J and Murder Reference No. 6 of 2019, heard on 30th November, 2021.

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

----Ss. 302(b) & 325---Qatl-i-amd, attempt to commit suicide---Appreciation of evidence---Natural witnesses---Accused was charged for committing murder of the son of the complainant by inflicting knife blows---Motive behind the occurrence was that the deceased won prize of Rs. 20, which he demanded form the accused but he murdered him---Ocular account of the incident had been furnished by two eye-witnesses including complainant--- Cross-examination conducted upon the said prosecution witnesses clearly established the fact that they were attracted to the place of occurrence when the deceased did not return from the shop of the accused even after ten minutes and immediately arrived at the place of occurrence as they were residents of the same area, close to the place of occurrence and witnessed the same---Said prosecution witnesses also explained that they were standing just near to the place of occurrence, at a distance of about 100 feet, talking with each other and thereafter reached at the place of occurrence---Place of occurrence was the shop of the accused, which shop had been constructed within the premises of the house of the accused---Complainant was the next door neighbor of the accused whereas the other witness was the resident of the same area, therefore, their arrival at the place of occurrence, at the time of occurrence was natural---Said witnesses, proved themselves to be truthful witnesses and implicit reliance could be placed upon their statements---No evidence was on record to show that the said witnesses were motivated by any enmity to depose against the accused---Complainant was the father of deceased, whereas other eye-witness was not related in any manner either to the deceased or complainant and no reason existed prior to the occurrence which could have made eye-witnesses interested to get the accused involved in the occurrence falsely and let off the real accused---Both the prosecution witnesses were subjected to cross-examination but the defence failed to make cracks in their deposition and the genuineness of their statements had been proved---Moreover during the cross-examination the sequence of the occurrence was brought on record and both the prosecution witnesses remained consistent---Hence, in view of the said facts, the prosecution witnesses by no stretch of imagination could be declared as not being present at the place of occurrence--- Even interested witnesses would not normally allow real culprits for the murder of their relative let off by involving innocent persons---In that context, the accused remained unable to establish any animosity of the complainant or the police for his false involvement in the case---Occurrence in question had admittedly taken place in broad daylight at about 02.30 p.m., inside the shop of the accused and the same, therefore, could not have gone un-witnessed nor could have the culprit escaped unobserved---As it was a broad daylight occurrence and because of the fact that the accused was known to both the prosecution witnesses, the question of his misidentification did not arise---Furthermore, the accused was also arrested on the day of occurrence from his own house---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however due to mitigating circumstance, the death sentence was altered to imprisonment for life---Appeal against conviction was dismissed with said modification in sentence.

Zakir Hussain v. The State 2008 SCMR 222; Muhammad Aslam v. The State 2012 SCMR 593; Abid Ali v. The State 2017 SCMR 662 and Irshad Ahmad and others v. The State and others PLD 1996 SC 138 rel.

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

----Ss. 302(b) & 325---Qatl-i-amd, attempt to commit suicide---Appreciation of evidence---Promptly lodged FIR---Accused was charged for committing murder of the son of the complainant by inflicting knife blows---Record showed that the occurrence in the case took place at about 02.30 pm on 12.09.2017 and was reported by the complainant to the police with promptitude through his written application to Police Official at 3.30 p.m. on the same day---On the basis of the written application of the complainant, the formal FIR was registered at 04.20 p.m. by Police Official at the Police Station---Thus, it was apparent that the written application of the complainant was submitted with noteworthy swiftness, especially when the complainant of the case had suffered the trauma of the death of his young son, aged about ten years, at the hands of the accused---Complainant not only named the accused, but also mentioned each and every minor as well as material fact of the incident in his written application, which of course excluded the possibility of deliberation or consultation regarding false implication of the accused in the case---Salient features of the occurrence had been elaborately explained in the written application---Promptitude in reporting the matter to the police also corroborated the case of the prosecution as against the accused---Such promptitudeness in reporting the matter to the police established the presence of the witnesses at the place of occurrence at the time of occurrence and supported their narrative---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however due to mitigating circumstance, the death sentence was altered to imprisonment for life---Appeal against conviction was dismissed with said modification in sentence.

Muhammad Waris v. The State 2008 SCMR 784; Muhammad Arshad v. The State 2020 SCMR 2025; Noor Sultan and others v. The State 2021 SCMR 176; Shaheen Ijaz alias Babu v. The State 2021 SCMR 500 and Muhammad Aslam v. The State 2012 SCMR 593 rel.

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

----Ss. 302(b) & 325---Qatl-i-amd, attempt to commit suicide---Appreciation of evidence---Medical evidence---Accused was charged for committing murder of the son of the complainant by inflicting knife blows---Medical evidence produced by the prosecution in the case proved that the deceased had received the fatal injuries on the vital parts of his body and he succumbed to the said injuries caused by the accused---Medical evidence fully supported the ocular account---During the course of cross-examination, the role of the accused brought on record further cemented the truthfulness of the statements of the prosecution witnesses---As per medical evidence, it has been ascertained and proved that the intent of the accused was to cause death and that he was guilty of Qat-i-amd of deceased---Accused, after the occurrence, attempted to commit suicide in view of the prosecution witnesses and the said act of the accused was also proved and corroborated by the statement of Medical Officer---Accused while getting his statement recorded at the time of framing of charge made a blunt admission that he had attempted to take his own life after realizing what he had done---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however due to mitigating circumstance, the death sentence was altered to imprisonment for life---Appeal against conviction was dismissed with said modification in sentence.

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

----Ss. 302(b) & 325---Qatl-i-amd, attempt to commit suicide---Appreciation of evidence---Recovery of weapon of offence on the instance of accused---Inconsequential---Accused was charged for committing murder of the son of the complainant by inflicting knife blows---Recovery of the Knife from the accused, could not be relied upon as the knife which had been used by the accused to cause the death of the deceased, though taken into possession by the Investigating Officer of the case, however, was never produced before the Trial Court---Investigating Officer stated that a sealed parcel of the knife was prepared and handed over to Police Official and similar was the statement of said Police Official---However, according to the statement of recovery witness, two different knives were recovered---Said recovery witness also stated that the churri recovered from the accused had a yellow coloured handle---Contrary to the said statement, according to the report of Forensic Science Agency, the knife analyzed by Forensic Science Agency had an orange coloured handle---In that manner, it was not clear as to out of the two knives used by the accused during the occurrence, which knife was produced before the Trial Court and exhibited as an article and which knife was analyzed by the Forensic Science Agency---Moreover, it was noted that one of the knives was also sent to the office of Forensic Science Agency for the analysis of the finger prints and according to the report of Forensic Science Agency, the knife was processed for the development of latent prints, however no latent print was developed, therefore, no comparison was conducted with the finger and palm print of the accused---Thus, the recovery of the knife did not further the case of prosecution in any manner---In view of the said facts, the alleged recovery of the knife was not proved and the same could not be used as a circumstance against the accused---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however due to mitigating circumstance, the death sentence was altered to imprisonment for life---Appeal against conviction was dismissed with said modification in sentence.

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

----Ss. 302(b) & 325---Qatl-i-amd, attempt to commit suicide---Appreciation of evidence--- Motive not proved---Effect---Accused was charged for committing murder of the son of the complainant by inflicting knife blows---Motive of the occurrence, as mentioned in the written application of complainant, was that the deceased had won a prize of Rs.20/- which when demanded by the deceased from the accused, the accused committed the occurrence---Motive as alleged could not be proved---Both the eye-witnesses while appearing before the Trial Court did not mention the said motive of the occurrence and made no statements with regard to the motive before the Trial Court---Furthermore, no documentary evidence was brought on record to establish that the deceased had won a prize of Rs. 20/- and the accused, on demanding the said prize, committed the murder of the deceased due to the said reason---During the course of investigation, the Investigating Officer of the case did not collect any evidence in support of the motive of the occurrence as mentioned in the written application---Prosecution witnesses failed to provide evidence 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 commit the qatl-i-amd of the deceased---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 any shadow of doubt, however, due to mitigating circumstance, the death sentence was altered to imprisonment for life---Appeal against conviction was dismissed with said modification in sentence.

Muhammad Asif v. The State 2008 SCMR 1001 rel.

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

----Ss. 302(b) & 325---Qatl-i-amd, attempt to commit suicide---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Motive not proved---Recovery of weapon in-consequential---Accused was charged for committing murder of the son of the complainant by inflicting knife blows---Record showed that the evidence of recovery of the knives from the possession of the accused had been disbelieved---Prosecution had alleged a specific motive in the case but failed to prove the same---Question of quantum of sentence required utmost attention and thoughtfulness on the parts of the Courts---Moreover, it was not determinable in the case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence and elicited such a colossal retort from the accused, which had resulted into the death of the deceased---Thus, the death sentence awarded to the accused was quite castigatory---Notproving of motive might be considered a mitigating circumstance in favour of the accused---Hence, the death sentence was altered to imprisonment for life---Appeal against conviction 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; Qaddan and others v. The State 2017 SCMR 148 and Ghulam Murtaza v. The State 2021 SCMR 149 rel.

Farooq Haider Malik for Appellant.

Ch. Asghar Ali Gill, Deputy Prosecutor General for the State.

Asif Usmani for the Complainant.

2023 Y L R 1568

[Lahore (Multan Bench)]

Before Anwaar Hussain, J

Ch. MUHAMMAD SALEEM---Appellant

Versus

Ch. ABDUL RAZZAQ---Respondent

R.S.A. No. 16 of 2011, heard on 5th October, 2022.

Punjab Pre-emption Act (IX of 1991)---

----Ss. 13 & 27---Possession through pre-emption---Sale price, determination of---During pendency of suit filed by respondent/pre-emptor, parties entered into an agreement---Dispute between the parties was confined only to the extent of sale price to be received by appellant/ vendee---Sale price of suit plot determined by Trial Court was maintained by Lower Appellate Court---Validity---Trial Court was empowered to determine price on the yardstick of market value---Such exercise was to be taken only in cases where parties were at dispute with regards to the price---Appellant/vendee accepted findings on the point of compromise/admission in terms of handing over of the plot to respondent/pre-emptor--- Findings of Courts below on settlement of proper issues regarding the price etc. and the matter having already been settled and having attained finality could not be re-agitated in second round of litigation---Appellant/vendee was adamant to demand a price in excess of the one he himself got recorded in the sale deed by virtue of which he had purchased the plot---Right of pre-emption and determination of sale price were at two different pedestals severable from each other---Failure to reach a settlement on sale price by appellant/vendee and respondent/pre-emptor did not obliterate the compromise to the extent of acknowledgement of right of pre-emption---Admission of right of pre-emption, once made, could not be retracted if appellant/vendee and respondent/pre-emptor failed to reach mutually acceptable price---Price could be determined in terms of S. 27 of Punjab Pre-emption Act, 1991---High Court declined to interfere in concurrent findings of two Courts below---Second appeal was dismissed in circumstances.

Messrs Kuwait National Real Estate Company (Pvt.) Ltd and others v. Messrs Educational Excellence Ltd. and another 2020 SCMR 171; Messrs Shahdab Developers v. Abdullah 2009 MLD 397; Mst. Willayat v. Khalil Khan PLD 1979 SC 821 and City District Government v. Faqir Muhammad 2008 CLC 645 distinguished.

Ch. Muhammad Saleem v. Additional District Judge, Sahiwal and 2 others 2009 YLR 1621; Qasim Ali v. Muhammad Saeed PLD 1989 Lah. 230 and Inayatullah v. Gobind Dayal (1885) ILR 7 All 775 rel.

Syed Muhammad Ali Gillani for Appellant.

Ch. Muhammad Anwar-ul-Haq and Javaid Ahmad Khan for Respondent.

2023 Y L R 1576

[Lahore]

Before Muhammad Shan Gul, J

MUHAMMAD IQBAL KHAN---Petitioner

Versus

MUHAMMAD NAWAZ KHAN and 23 others---Respondents

Civil Revision No. 66215 of 2019, decided on 3rd October, 2022.

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

----Arts. 117 & 120---Civil Procedure Code (V of 1908), O. VI, R.4---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction---Fraud---Proof---Onus to prove-Shifting of onus---Concurrent findings of two Courts below---Petitioner/plaintiff assailed gift mutation on the plea of fraud---Trial Court and Lower Appellate Court dismissed suit and appeal respectively---Validity---Except for bald and empty rhetoric no particular, specific nuances of what fraud was practiced, how it was practiced, on whom it was practiced and by what mechanism it was practiced had been recorded in plaint---Particulars of fraud or misrepresentation having not been canvassed, there was no way that initial onus could have shifted on to respondent/defendant to prove gift mutation in question---Burden of proving fraud was on the party alleging it and that too by clear and convincing evidence, particularly where a long period had expired and valuable rights had accrued to the other side---Petitioner/plaintiff failed to prove any fraud, deception or convince regarding gift mutation in question, the subsequent inheritance, mutation on the basis thereof could not have been declared to be of no legal effect, as the same emanated out of the gift mutation in question---High court declined to interfere in well-reasoned concurrent findings recorded by two Courts below, as there was no illegality, irrationality, perversity or excess of jurisdiction involved in the matter---Revision was dismissed, in circumstances.

Khan Muhammad v. Muhammad Din through legal heirs 2010 SCMR 1351; Muhammad Yousaf and 2 others v. Muhammad Afzal and 6 others 2015 YLR 1162; Ahsan Ali and others v. District Judge and others PLD 1969 SC 167; Mukhtar Ahmed and 4 others v. Taj Din and others 2012 MLD 873; Mst. Bhano and another v. Mian A.M. Saeed and others 1969 SCMR 299; Sardar Ali v. Mst. Sardar Bibi alias Sardaran through L.Rs. 2010 SCMR 1066 and Taaj Muhammad v. Munawar Jaan 2009 SCMR 598 rel.

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

----O.VI, R.4---Qanun-e-Shahadat (10 of 1984), Arts.117 & 132---Fraud---Proof---Procedure---Where a party asserts fraud it should clearly narrate the same in its pleadings with clarity of facts---Party should also narrate the same with clarity during the course of examination-in-chief---Bald statement about commission of fraud is of no legal consequences.

Messrs Lanvin Traders, Karachi v. Presiding Officer, Banking Court No.2 and others 2013 SCMR 1419; Taj Muhammad Khan through L.Rs. and another v. Mst. Munawar Jan and 2 others 2009 SCMR 598 and Shehwaar and 2 others v. Muhammad Riaz and others 2018 YLR 1938 rel.

Muhammad Asim Iqbal Awan for Petitioner.

Respondent not represented.

Date of hearing: 3rd October, 2022.

"Secundum allegata et probata"

2023 Y L R 1585

[Lahore (Rawalpindi Bench)]

Before Sohail Nasir, J

AFTAB HUSSAIN and 3 others---Petitioners

Versus

The STATE and another---Respondents

Criminal Revision No. 84 of 2022, heard on 20th July, 2022.

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

----Ss. 324, 337-A(i), 337-A(iii), 337-F(i), 337-F(iii), 337-L(2), 337-H(2), 336, 452 & 34---Attempt to commit qatl-i-amd, shajjah-i-khafifah, shajjah-i-hashimah, ghayr-jaifah-mudihah, ghayr-jaifah-mutalahimah, causing hurt, rash and negligent act, itlaf-i-salahiyat-i-udw, house-trespass after preparation for hurt, common intention---Appreciation of evidence---Benefit of doubt--- Injured witness, testimony of--- Reliance---Accused were charged that they entered into the shop of complainant and made firing, due to which the complainant and a witness were hit and got injured---Prosecution's case mainly relied on the statements of two injured witnesses---Presumption about an injured witness was a settled proposition that his/her presence at place of occurrence could not be disputed or doubted because of injuries on his body but it did not mean that witness was to be given a stamp of truth---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed accordingly.

Amin Ali v. The State 2011 SCMR 323; Said Ahmad v. Zammured Hussain 1981 SCMR 795; Muhammad Hayat v. State 1996 SCMR 1411 and Mehmood Ahmad v. State 1995 SCMR 127 rel.

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

----Ss. 324, 337-A(i), 337-A(iii), 337-F(i), 337-F(iii), 337-L(2), 337-H(2), 336, 452 & 34---Attempt to commit qatl-i-amd, shajjah-i-khafifah, shajjah-i-hashimah, ghayr-jaifah-mudihah, ghayr-jaifah-mutalahimah, causing hurt, rash and negligent act, itlaf-i-salahiyat-i-udw, house-trespass after preparation for hurt, common intention---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Contradictions---Accused were charged that they entered into the shop of complainant and made firing, due to which the complainant and a witness were hit and got injured---Prosecution's story in FIR was quite specific that an accused made a fire with 12-bore gun that hit on the legs of complainant---In addition thereto it was also alleged that complainant received injuries with the pistols butt and iron rod---Complainant was medically examined on the same day and surprisingly in his Medico-Legal Report although the Medical Officer observed ten injuries but none of those was the result of firearm---Medical Officer even in Court was firm in his opinion that all the injuries were caused by blunt weapons---In cross-examination the Medical Officer without any reservation responded that the injuries sustained by the injured could be sustained by falling on hard surface---In FIR it was alleged that two accused made firing and the fires hit on the mouth of injured---Same Medical Officer at the same time had also medically examined injured and issued Medico-Legal Report---According to Medical Officer injury No.1 was an entry wound on the lips whereas injury No.2 was an exit---Injury No.3 was loss of central incisor upper soft tissue whereas injury No.4 was swelling on centre of the nose, so it was not difficult to understand that apparently injuries Nos.2 to 4 were ultimate outcome of injury No.1---Medical Officer while facing the test of cross questioning about injuries No. 3 and 4 also replied that possibility could not be ruled out that injury No. 4 could be the result of falling or striking on hard/blunt surface---Injury No. 3 could also be the result of striking with blunt weapon---Thus, it could be finally held that there was only one firearm injury on the person of injured---Complainant neither at the stage of investigation nor during the process of trial made any attempt to challenge the opinions of Medical Officer with regard to kinds of weapon and even no request was made to the trial Court to declare the Medical Officer as hostile or seeking permission for his re-examination which meant that the prosecution had not disputed the opinions formed by the Medical Officer---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed accordingly.

Muhammad Zaman v. The State and others 2014 SCMR 749; Faiz Meeran v. The State 2016 SCMR 1456; Muhammad Mehboob v. The State 2021 SCMR 366 and Muhammad Mehboob v. The State 2021 SCMR 366 rel.

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

----Ss. 324, 337-A(i), 337-A(iii), 337-F(i), 337-F(iii), 337-L(2), 337-H(2), 336, 452 & 34---Attempt to commit qatl-i-amd, shajjah-i-khafifah, shajjah-i-hashimah, ghayr-jaifah-mudihah, ghayr-jaifah-mutalahimah, causing hurt, rash and negligent act, itlaf-i-salahiyat-i-udw, house-trespass after preparation for hurt, common intention---Appreciation of evidence---Benefit of doubt---Dishonest improvements made by the witness---Effect---Accused were charged that they entered into the shop of complainant and made firing, due to which the complainant and a witness were hit and got injured---In FIR it was the case of complainant that two accused made fires hitting on the mouth of injured, however when he came in witness box, he in his examination-in-chief improved the version by stating that both the accused made joint firing and it was the fire of one accused that hit on the lips of injured---Said witness was duly confronted by defence from his previous statement but he could not offer any explanation for that improvement---When important witness of the case improves his version during the trial to bring his evidence in line with the other declarations, his testimony remains of no worth for the prosecution---Thus, the worth and veracity of two injured witnesses of the case was under serious doubts hence they could not be relied upon---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed accordingly.

Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Farman Ahmad v. Muhammad Inayat and others 2007 SCMR 1825; Akhtar Ali and others v. The State 2008 SCMR 6; Muhammad Rafique and others v. The State and others 2010 SCMR 385; Muhammad Saleem v. Muhammad Azan and another 2011 SCMR 474; Irfan Ali v. State 2015 SCMR 840; Ali Sher v. State 2015 SCMR 142; Javaid Akbar v. Muhammad Amjad and Jameel alias Jeela 2016 SCMR 1241; Azeem Khan v. Mujahid Khan 2016 SCMR 274; Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344; Muhammad Mansha v. The State 2018 SCMR 772; Muhammad Arif v. The State 2019 SCMR 631; Muhammad Hamza and another v. The State and another Criminal Appeal No. 907 of 2017 and Muhammad Umar v. The State and another 2021 MLD 697 rel.

Ch. Jalil-ur-Rehman for Petitioners.

Khawaja Sohail Iqbal District Public Prosecutor for the State.

Khawaja Umair Asghar for the Complainant.

Arslan Fazal Sub-Inspector, in person

2023 Y L R 1649

[Lahore (Multan Bench)]

Before Sardar Muhammad Sarfraz Dogar and Shakil Ahmad, JJ

TALIB HUSSAIN and others---Petitioners

Versus

The STATE and others---Respondents

Criminal Appeal No. 181 of 2022, decided on 5th July, 2022.

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

----Ss. 302, 324, 337-A(i), 337-F(vi), 337-L(1), 109, 148 & 149---Criminal Procedure Code (V of 1898), S. 426---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-munaqqillah, punishment for other hurt, abetment, rioting armed with deadly weapon, unlawful assembly---Suspension of sentence---Not allowed---Accused persons sought suspension of their sentences awarded to them under Ss.302, 324, 337-A(i), 337-F(vi), 337-L(1), 109, 148 & 149, P.P.C., pending their appeal---Record showed that accused/ convict was specifically named in the FIR as well as in the private complaint and upon conclusion of investigation he was found involved in the commission of alleged crime---Trial Court after recording prosecution evidence held accused/convict guilty and proceeded to convict and sentence him accordingly---When an accused was held guilty by a Court of competent jurisdiction on the basis of evidence so led at trial, initial presumption of innocence simply stood vanished---Accused/convict failed to point out any obvious legal infirmity or perversity in the impugned judgment---No case of suspension of sentence to the extent of said accused/convict was made out---Petition of said accused for suspension of sentence was dismissed.

Abdul Wahab and others v. The State and others 2019 SCMR 516 and Makhdoom Javed Hashmi v. The State 2007 SCMR 246 rel.

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

----Ss. 302, 324, 337-A(i), 337-F(vi), 337-L(1), 109, 148 & 149---Criminal Procedure Code (V of 1898), S. 426---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-munaqqillah, punishment for other hurt, abetment, rioting armed with deadly weapon, unlawful assembly---Suspension of sentence---Accused persons sought suspension of their sentences awarded to them under Ss. 302, 324, 337-A(i), 337-F(vi), 337-L(1), 109, 148 & 149, P.P.C. pending their appeal---As per record, it was observed in the first place that sentence awarded to present accused/ convict was short one and there was no likelihood of decision of the main appeal in near future---In case, the accused/ petitioner was not released on bail during the pendency of his appeal, there was every possibility that, before the decision of his appeal, he would have undergone his entire sentence---Furthermore, it would certainly be impossible to compensate the accused/petitioner for his detention in jail if ultimately he was acquitted after having served out his entire sentence---In the said circumstances, coupled with the principle of safe administration of justice, it seemed appropriate to order the release of accused/petitioner by way of suspension of his sentence---Petition of said accused was allowed, in circumstances.

Ch. Shakir Ali for Petitioners.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

2023 Y L R 1669

[Lahore]

Before Jawad Hassan, J

ABDUL GHAFOOR SHAH---Appellant

Versus

DEPUTY COMMISSIONER, FAISALABAD---Respondent

Writ Petition No. 67755 of 2022, decided on 7th February, 2023.

Constitution of Pakistan---

----Arts. 25 & 199---Constitutional petition---Discrimination---License, non-renewal of---Petitioner was aggrieved of refusal of authorities to renew his license for manufacturing, possessing and selling gunpowder and fireworks---Plea raised by petitioner was that he was discriminated as the licenses of others were renewed--- Validity--- Identical treatment in unequal circumstances amounts to inequality---Reasonable classification or sub-classification is not only permitted but is necessary if society has to progress---It must always rest upon some real and substantial distinction bearing a just and reasonable relation to the objects sought to be achieved by the authority---Persons may be classified or further sub-classified into entities and such entities may be treated differently if there is a reasonable basis for such difference---Class legislation under Art. 25 of the Constitution is forbidden but it does not forbid classification of differentiation, which rests upon reasonable grounds of distinction---Classification must not be arbitrary, artificial or evasive but must be based on some real and substantial bearing, a just and reasonable relation to the object sought to be achieved by the legislation---Principle of equality does not mean that every law, policy matter, notification, administrative or executive order etc. must have universal application to all persons who by nature, attainment or circumstances are not in the same position---Petitioner was neither covered within the ambit of Explosives Act, 1884, nor under the guidelines laid down by Supreme Court---High Court declined to interfere in the matter, as there was no illegality or infirmity in the order passed by authorities---Constitutional petition was dismissed in circumstances.

Asghar Ali alias Kaloo v. The State PLD 2008 Lah. 184 and Government of Khyber Pakhtunkhwa through Chief Secretary and others v. Syed Sadiq Shah and others 2021 SCMR 747 rel.

Rai Ghulam Mustafa Kharal for Petitioner.

2023 Y L R 1672

[Lahore]

Before Shahid Karim, J

ASGHARI BEGUM (PVT.) LTD.---Petitioner

Versus

PROVINCE OF THE PUNJAB and others---Respondents

Writ Petition No. 46031 of 2022, decided on 8th September, 2022.

(a) Punjab Healthcare Commission Act (XVI of 2010)---

----S.23---Punjab Healthcare Commission Complaint Management Regulations, 2014, Regln. 8---Constitutional petition---Procedure of investigation--- Entrustment of complaints---Scope---Petitioner assailed the order passed by the Director Complaints---Validity---In cases entrusted to a Case Worker as a Competent Authority, no other authority is competent to pass an interim order---Competent Authority can either be the Punjab Healthcare Commission or the Case Worker to whom delegation may be made by the Competent Authority---Order passed by the Director Complaints was ultra vires and had no basis in law---Impugned order was set aside and the constitutional petition was disposed of accordingly.

(b) Punjab Healthcare Commission Act (XVI of 2010)---

----S.23---Punjab Healthcare Commission Complaint Management Regulations, 2014, Regln. 8---Constitution of Pakistan, Arts. 199 & 10-A--- Constitutional petition---Right to fair trial---Procedure of investigation--- Entrustment of complaints---List of witnesses, suppling of---Scope---Petitioner assailed action of the competent authority whereby it was not confronted with the list of witnesses sought to be produced by the complainant---Validity of said contention rests on the rule of fairness and due process of law, which requires an investigation and determination of rights to be conducted fairly and based on the primary principles governing the rule of law---Firstly, the competent authority investigating a complaint against a healthcare service provider must formulate the primary issues arising from the complaint that need to be confronted and responded to by the healthcare service provider---Secondly, the parties must be obliged by the competent authority hearing the complaint to file a list of witnesses along with affidavits prior to the commencement of the proceedings in the complaint---This would be in consonance with the principles of fairness and would prevent any party from being taken by surprise---Undoubtedly, any proceedings in the complaint and investigation against a healthcare service provider must adhere to the basic rule of administrative law relating to rationality and reasonableness---It would be in the interest of fair proceedings and would work reasonably in favour of both the complainant and the healthcare service provider against whom the complaint has been made if the issues are clearly identified, and the parties are notified of the witnesses and other evidence sought to be produced against each other---Constitutional petition was partly allowed, impugned order was set aside, and the application submitted by the petitioner was deemed to be pending and was to be decided in light of the observations made in the present case.

Waqqas Ahmad Mir, Hassan Ali and Ali Rahim Zahid for Petitioner.

Tipu Salman Makhdoom, Addl. Advocate General.

Sh. Muhammad Ali for Respondent No.6.

2023 Y L R 1691

[Lahore]

Before Anwaarul Haq Pannun, J

ZEESHAN IFTIKHAR alias SHANI---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 14750 and Criminal Revision No. 14749 of 2022, heard on 8th December, 2022.

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

----Ss. 302(b), 386, 440, 427 & 34---Qatl-i-amd, extortion by putting a person in fear of death or grievous hurt, mischief committed after preparation made for causing death or hurt, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence---Benefit of doubt---Delay of twelve hours in conducting post-mortem examination of dead body of the deceased---Effect---Accused was charged that he along with his co-accused committed murder of the son of complainant by firing due to non-payment of Bhatta and also made indiscriminate firing, causing damage to mirrors, screens etc. of a vehicle, which created a sense of terror and panic in the area---According to postmortem report as well as Medical Officer, the death occurred at 02.10 a.m.; he received dead body in dead house at 04.10 a.m.; the police provided him the relevant documents for autopsy at 10.50 a.m. and consequently he conducted postmortem at 11.00 a.m.---According to the opinion of said witness, death in this case occurred due to injury No.1 inflicted by firearm, which severely injured both the lungs and blood vessels, and led to hemorrhagic shock and death---Both the injuries were ante mortem---Injury No. I was sufficient to cause death in ordinary course of nature---Probable time that elapsed between injuries and death was 10 to 20 minutes and between death and post mortem it was within 12 hours---Said delay in conducting post mortem examination over the dead body of the deceased, in the given circumstances of the present case, when the mortuary was situated within the bounds of the city, was an intriguing feature to create doubt about the claim regarding promptness in lodging the FIR by the complainant and casted serious suspicion about the correctness and veracity of the prosecution's version---Circumstances established that the prosecution had badly failed to prove its case against the accused---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), 386, 440, 427 & 34---Qatl-i-amd, extortion by putting a person in fear of death or grievous hurt, mischief committed after preparation made for causing death or hurt, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence---Benefit of doubt---Presence of eye-witnesses at the relevant time of occurrence doubtful---Accused was charged that he along with his co-accused committed murder of the son of complainant by firing due to non-payment of Bhatta and also made indiscriminate firing, causing damage to the mirrors, screens etc. of a vehicle, which created a sense of terror and panic in the area---As per complainant, the distance between his residence and the show-room/place of occurrence was 10 to 12 K.M., whereas the distance inter se the house of the complainant and house of eye-witness was about 15/16 K.M, within the radius of the Municipal Area of City---Admittedly, eye-witness was nephew/Bhanja of complainant and his residence was also situated at a distance of 7/8 K.M. from the place of occurrence---Both the witnesses as such were closely related to each-other and the deceased---Said witnesses apparently had deposed in unison while recording their examination-in-chief that on the day of occurrence at evening time, they had gone to purchase a vehicle from the showroom of Mr. "Y"---As per Sun Calculator of Pakistan available on the internet, on the day of occurrence the time of sun-rise in said city was 06:02 a.m. and sun-set at 6:23 p.m.---Admittedly, all the witnesses were residing within the municipal limits of the city---Instead of returning to their homes, when they could not find out a vehicle of their choice, the claim of prosecution witnesses that they all apparently aimlessly remained busy during that prolonged interregnum in conversation with each other up-till 01.45 a.m. (late night), which were not usually the business hours, palpably appeared to be an unnatural and preposterous attempt by the witnesses to establish their presence at the relevant time at the place of occurrence---As such the presence of both the eye-witnesses at the relevant time of occurrence seemed to be highly doubtful, therefore, conviction could not be sustained merely on the strength of their parrot like narrations---Prosecution had failed to prove other corroboratory limbs i.e. recovery and motive, and the charges under Ss. 386/ 440/34, P.P.C. against the accused before the Trial Court---Circumstances established that the prosecution had badly failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 386, 440, 427 & 34---Qatl-i-amd, extortion by putting a person in fear of death or grievous hurt, mischief committed after preparation made for causing death or hurt, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence---Benefit of doubt---CCTV footage, evidence not sent to Forensic Laboratory--- Effect--- Accused was charged that he along with his co-accused committed murder of the son of complainant by firing due to non-payment of Bhatta and also made indiscriminate firing, causing damage to the mirrors, screens etc. of a vehicle, which created a sense of terror and panic in the area---In the present case, another piece of evidence which could have been beneficial to the prosecution's case, comprising of CCTV footage i.e. CD and USB, obtained from the Manager of the Bank, seized by the Investigating Officer through recovery memo. and attested by witnesses, had already been discarded by the Trial Court being inconsequential as the Investigating Officer did not send the said recovered items to the Forensic Science Agency for getting expert opinion about their authenticity---Circumstances established that the prosecution had badly failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 386, 440, 427 & 34---Qatl-i-amd, extortion by putting a person in fear of death or grievous hurt, mischief committed after preparation made for causing death or hurt, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence---Benefit of doubt---Concealments and suppressing of facts by the witnesses---Effect---Accused was charged that he along with his co-accused committed murder of the son of complainant by firing due to non-payment of Bhatta and also made indiscriminate firing, causing damage to the mirrors, screens etc. of the vehicle, which created a sense of terror and panic in the area---Upon perusal of record, it appeared that the complainant in connivance with the police while suppressing the real facts, which had a material bearing upon the case, made an abortive attempt to portray an appropriate story of the occurrence---Right from the registration of case up to the making of the statements of witnesses in the Court, the so-called eye-witnesses had left no stone unturned to conceal the presence of Mr. "Y", the proprietor of the show-room and receiving of his injuries at the time of occurrence---Such concealment and suppression made by the complainant party had been un-earthed by the defence while exercising its right of cross-examination---First Investigating Officer, while facing the cross-examination deposed that Mr. "Y" was the owner of the show-room---Though initially said witness negated a suggestion put by the defence that Mr. "Y" was injured during this occurrence, he however, voluntarily stated that he became injured prior to the occurrence of this case---Defence had ably and readily suggested to the said witness that volunteer portion of his statement was incorrect---Said witness, however, admitted that the Medico-Legal Certificate of Mr. "Y" was annexed with the police file---Said witness further admitted it to be correct, in response to a fruitful suggestion made by the defence that according to Medico-Legal Certificate annexed with the police file, the time of medical examination of Mr. "Y" was 03.49 a.m. on 27.03.2018.---Similarly, said witness further stated that the injury statement of Mr. "Y" prepared by Moharrir/Head Constable was also annexed with the police file---In addition to that, second Investigating Officer had also stated that he knew that Mr. "Y" was the owner of show-room/place of occurrence---Said Mr. "Y" had been injured during the occurrence and he had got Medico-Legal Certificate from the hospital---Statements of the two Investigating Officers, left no room to doubt that Mr. "Y" (injured) was actually an eye-witness of the alleged occurrence---Presence of said person at the spot being a proprietor of the showroom was natural and his medical examination by way of Medco-Legal Certificate issued through the police had further consolidated his presence---However name of said person was not shown as a witness in the calendar of witnesses attached with the report under S. 173, Cr.P.C., by the police with mala fide---In such circumstances, by not producing Mr. "Y", the injured witness of the occurrence in the Court, the prosecution was guilty of suppression of real facts and withholding of the best evidence---Thus, the self harming act of the prosecution, for retaining for its cards quite close to its chest, had given rise to a serious doubt about the veracity and correctness of the prosecution's version, the benefit of which irresistibility had to be extended to the defence---Circumstances established that the prosecution had badly failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

Mst. Zarsheda v. Nobat Khan PLD 2022 SC 21; Jehangir v. Mst. Shams Sultana and others 2022 SCMR 309; Muhammad Naeem Khan and another v. Muqadas Khan (decd) through L. Rs. and another PLD 2022 SC 99 and Muhammad Jabran and others v. The State 2020 SCMR 1493 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---Single instance causing a reasonable doubt in the mind of the Court entitles the accused to the benefit of the doubt not as a matter of grace but as a matter of right.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Muhammad Ahsan Bhoon, Syed Ali Zahoor Karmani, Irfan Riaz Gondal and Anees Ahmad Alvi for Appellant.

Ms. Rahila Shahid, Deputy District Public Prosecutor and Muhammad Nawaz Chaudhary, Assistant Advocate General for the State.

Waqar Hassan Mir for the Complainant.

2023 Y L R 1727

[Lahore]

Before Shehram Sarwar Ch. And Muhammad Tariq Nadeem, JJ

SANA ULLAH---Appellant

Versus

The STATE and 2 others---Respondents

Criminal Appeal No. 214337 and Murder Reference No. 226 of 2018, heard on 27th September, 2022.

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

----Ss. 302, 324, 337-A(i) & 337-F(ii)---Qatl-i-amd, attempt to commit qatl-i-amd, Shajjah-i-khafifah, ghayr-jaifah-badi'ah---Appreciation of evidence---First Information Report lodged with promptitude---Effect---Accused was charged for committing murder of the parents of complainant by inflicting knife blows---Occurrence in the case had taken place on 17.11.2014 at about 09:30 pm within the area situated at a distance of two furlongs away from Police Station, while the machinery of criminal law was set into motion by complainant through written complaint on the same day---In consequence whereof FIR was registered at the said Police Station at 10:25 pm within a period of 55 minutes---Thus, keeping in view the said circumstances of the case, the matter was reported to the police with sufficient promptitude which excluded any chances of deliberation or consultation on the part of the prosecution---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Muhammad Hayat and another v. The State 2021 SCMR 92 rel.

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

----Ss. 302, 324, 337-A(i) & 337-F(ii)---Qatl-i-amd, attempt to commit qatl-i-amd, Shajjah-i-khafifah, ghayr-jaifah-badi'ah---Appreciation of evidence---Presence of eye-witnesses at the crime scene natural---Effect---Accused was charged for committing murder of the parents of complainant by inflicting knife blows---To substantiate its case though direct evidence, the prosecution produced three witnesses---Two of them were real brother and sons of deceased persons whereas third witness was their neighbor---Complainant while appearing before the Trial Court had reiterated the same facts and levelled the same allegation against the accused in a mode and manner as he had mentioned in his application before the police on the basis whereof FIR, was registered---Statement of complainant was fully corroborated by the statements of other two witnesses---All the witnesses stuck to the stance taken by them on the day of occurrence in their statements recorded under Ss. 154 & 161 of the Code of Criminal Procedure, 1898, respectively without any noticeable and material deviations---During the cross-examination, nothing beneficial to the accused surfaced---No material discrepancies or improbabilities in their statements, to the extent of role of accused, could be hinted at by the accused---Though, two witnesses were real sons of deceased whereas third witness was their neighbor, yet their presence at the scene of occurrence was very much natural---Said witnesses had furnished plausible explanation to be present along with deceased at the relevant time---Answering statements of the eye-witnesses without any inconsistency inspired confidence---Perusal of FIR reflected that the witnesses tried to rescue the deceased and grappled, due to which accused also sustained injuries with his knife---In that way, no doubt was left qua the presence of the witnesses at the spot at the relevant time---Defence, therefore, failed to remotely infer that there could be false implication---Even otherwise, it was not acceptable to a prudent mind that close relatives would let off the real culprit accused of killing their near and dear one's and falsely implicate an innocent person---Court was satisfied that eye-witnesses were present at the scene of occurrence at the time of incident and their claim of having seen the tragedy stood proved from material available on record---Ocular account furnished by prosecution also got corroboration from medical evidence as the anti-mortem injuries on the person of both the deceased attributed to the accused were reflected in the post-mortem reports---Statements of Medical Officers, who conducted postmortem upon the dead body of the deceased, were subjected to cross-examination by the defence but nothing helpful to the defence could be extracted from them---Thus, the medical evidence provided full support to the ocular account in the case---Circumstances established that the prosecution had proved its case against the accused beyond any doubt---Appeal against conviction was dismissed accord-ingly.

Zia Ullah and another v. The State 2021 SCMR 1507; Asfandyar v. The State and others 2021 SCMR 2009 and Ghaffar Mahesar v. The State through P.G. Sindh and others 2022 SCMR 1280 rel.

(c) Criminal trial---

----Related and interested witnesses, statements of--- Reliance--- Scope---Statements of related or interested witnesses can be made basis for conviction of the accused if the same inspired confidence as it is the intrinsic worth of the evidence that matters and not the source it emanates from---Mere relationship of the witnesses with deceased cannot render their evidence unreliable unless it is established that they have motive to implicate the accused falsely.

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

----Ss. 302, 324, 337-A(i) & 337-F(ii)---Criminal Procedure Code (V of 1898), S. 341---Qatl-i-amd, attempt to commit qatl-i-amd, Shajjah-i-khafifah, ghayr-jaifah-badi'ah--- Appreciation of evidence---Deaf and dumb accused able to understand court proceedings---Scope---Accused was charged for committing murder of the parents of complainant by inflicting knife blows---In the present case, though the accused claimed himself to be deaf and dumb but S. 341, Cr.P.C., did not apply in the present case because the pre-requisite of S.341, Cr.P.C. was that the accused though not insane, could not be made to understand the proceedings---However in the present case the accused was able to understand the proceedings of the case---At the time of framing of the charge against the accused, a meeting was held between elder brother of the accused and Headmistress of Deaf and Defective Hearing School, for the purpose of understanding the stance/reply of accused regarding the allegation levelled against him---Both the said interpreters of the accused stated that they were in a position to submit the reply/stance of the accused---Thereafter, the questions/query regarding the framing of charge were also put up to accused through his interpreters, Headmistress, as well as his elder brother who communicated the questions of the Court to the accused and recorded the reply/stance of the accused by interpreting his signs and gestures---Ultimately, the charge was framed against the accused---Thereafter, at the time of recoding of all the prosecution witnesses, brother of the accused remained present as his interpreter on each and every date of hearing---Moreover, the statement of the accused under S. 342, Cr.P.C., was recorded in presence of real brother of accused, who explained questions put to him with hand signs and got recorded answers according to the replies of accused, which he gave with hand signs of his brother---Neither was it agitated during the proceedings of the case that the accused was unable to understand the proceedings nor any application was filed in that regard---Real brother of accused was examined as defence witness, and according to his statement the accused was deaf and dumb since his childhood and being the real brother, he understood sign and gestures/symbols of accused, however, sometimes some signs were not understood by him---Said defence witness had never taken the stance that at the time of framing of charge against the accused, recording of evidence and statement of accused under S. 342, Cr.P.C. he could not convey/interpret the signs and gestures of the accused---Moreover, the accused was represented by two counsels who fully represented the accused and cross-examined the prosecution witnesses at length---Said counsels had also not filed any application during the whole trial that the accused could not understand the evidence recorded in his presence and was unable to reply to the questions of the Court---Trial Court had fully observed and taken care of the provisions of S. 361, Cr.P.C.---Hence the accused who claimed himself to be deaf and dumb was able to understand the proceedings through an interpreter i.e. his real brother---Circumstances established that the prosecution had proved its case against the accused beyond any doubt---Appeal against conviction was dismissed accordingly.

Khushi Muhammad v. Jamat Ali and others PLD 1984 SC 54 rel.

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

----Ss. 302, 324, 337-A(i) & 337-F(ii)---Criminal Procedure Code (V of 1898), S. 341---Qatl-i-amd, attempt to commit qatl-i-amd, Shajjah-i-khafifah, ghayr-jaifah-badi'ah--- Appreciation of evidence---Recovery of blood stained knife at the spot---Reliance---Accused was charged for committing murder of the parents of complainant by inflicting knife blows---Recovery of blood stained knife at the spot, vide recovery memo stood proved to the hilt by witness of ocular account---Parcel of knife was also deposited with Moharrer Malkhana, Police Station---Head Constable, who handed over the said parcel to Police Constable for its onward transmission to the Office of Forensic Science Agency, who delivered the said parcel in the said office intact---Report of Forensic Science Agency had unambiguously opined that human blood was found on the knife recovered from accused thus, the recovery of weapon of offence served as a strong piece of corroboration to the ocular testimonies of said witness---Circumstances established that the prosecution had proved its case against the accused beyond any doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 302, 324, 337-A(i) & 337-F(ii)---Criminal Procedure Code (V of 1898), S. 341---Qatl-i-amd, attempt to commit qatl-i-amd, Shajjah-i-khafifah, ghayr-jaifah-badi'ah--- Appreciation of evidence--- Motive proved--- Effect---Accused was charged for committing murder of the parents of complainant by inflicting knife blows---So far as motive part of the occurrence was concerned, it was observed that firstly, complainant in his statement disclosed that the accused committed the murder of deceased persons due to the fact that 03 months prior to the occurrence, complainant's sister, who was wife of accused, was living with them due to her differences and quarrelling with the accused and he had suspicion that his in-laws were restraining his wife to settle with him---Other witness also deposed in line with the statement of complainant---Moreover, defence witness had also admitted the motive part of the prosecution in his examination-in-chief, therefore, the prosecution successfully proved motive part of the occurrence---Circumstances established that the prosecution had proved its case against the accused beyond any doubt---Appeal against conviction was dismissed accordingly.

Muhammad Irfan Malik, Syed Ghazanfar Ali, Azhar Ali Bhatti, Rida Noor and Abdul Rehman Sohi for Appellant.

Muhammad Arshad Ali Farooqi, D.P.G. for the State.

Umar Afzal Ch. for the Complainant.

2023 Y L R 1752

[Lahore]

Before Malik Shahzad Ahmad Khan and Muhammad Waheed Khan, JJ

MUHAMMAD SARWAR---Appellant

Versus

MAGISTRATE 1st CLASS, DISTRICT GUJRAT and 6 others---Respondents

Intra-Court Appeal No. 12256 of 2023, heard on 15th March, 2023.

Criminal Procedure Code (V of 1898)---

----S. 30---Powers of Magistrate---Delay in filing application for medical examination---Effect---Mere delay in filing an application for conducting medical examination is not sufficient to dismiss such application.

Mansab Ali v. Asghar Ali Faheem Bhatti Additional Sessions Judge Nankana Sahib and 3 others PLD 2007 Lah. 176 and Ghulam Fareed v. Additional Sessions Judge D.G. Khan and 4 others 2010 PCr.LJ 4 ref.

Dr. Zia Ullah Ranjha for Appellant.

Waqar Saeed Khan, Addl. Advocate General and Nawaz, A.S.I. for the State.

Amjad Qayyum Baloch for Respondents Nos. 5 and 6.

2023 Y L R 1764

[Lahore]

Before Anwaar Hussain, J

SARDARA and others---Petitioners

Versus

MANZOOR BIBI through legal heirs and others---Respondents

Civil Revision No. 2850 of 2015, heard on 9th February, 2023.

(a) Punjab Partition of Immovable Property Act (IV of 2012)---

----Ss. 4 & 3(c)---Suit for partition of immovable property--- Agricultural property---Scope---Plaintiffs assailed the dismissal of their suit for partition---Validity---Plaintiffs averred that the joint property (Haveli) was in possession of defendants who were adamant to raise construction on it and alienate the same therefore, the same should be partitioned---Case of the defendants was that they were not raising any construction and a Dera had been constructed on the property which was made for agricultural purposes as a saw machine had been installed thereon and hence, the suit was not maintainable---Validity---Appellate Court had observed that the Haveli was a minor portion in the khewat wherein major portion was agricultural land---Haveli was part and parcel of the agricultural land as it was not being used for residential purpose---Since the plaintiffs had not sought partition of the complete land of the khewat, therefore, the property could not be partitioned by metes and bounds---Preponderance of evidence indicated that the plaintiffs had failed to establish their case and the Appellate Court had analyzed the same through cogent reasons and had rightly dismissed the suit---Revision petition was dismissed.

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

----S. 100---Judgment of Trial Court and Appellate Court--- Inconsistency in findings---Scope---In case of conflicting judgments of Courts below, the findings of the Appellate Court below are to be preferred and respected than that of the Trial Court unless it is shown from the record that such findings are not supported by evidence or the conclusions drawn are against the material on record or the judgment of the Appellate Court suffers from misreading or non-reading of evidence or that the reasons recorded for reversal of judgment of Trial Court are arbitrary, fanciful and perverse.

Enayat Sons (Pvt.) Ltd. v. Government of Pakistan through Secretary, Finance and others 2007 SCMR 969 and Amjad Ikram v. Mst. Asiya Kauser and 2 others 2015 SCMR 1 ref.

Muhammad Waqas Kahoot for Petitioners.

Ali Raza Warraich and Muhammad Usman Gondal for Respondents.

2023 Y L R 1784

[Lahore]

Before Sardar Muhammad Sarfraz Dogar, J

AHMAD DIN---Appellant

Versus

The STATE and others---Respondents

Criminal Revision No. 744 of 2016, heard on 24th May, 2023.

Penal Code (XLV of 1860)---

----Ss. 420, 468 & 471---Dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document---Sentence, reduction in---Petition-convict was a first offender, having no criminal antecedents, was a man of old age and desired rehabilitation and showed remorse and repentance to become a useful person in society---High Court observed that the convict should be given a chance for doing so---Revision petition was dismissed with the modification that his sentence was reduced to the one already undergone.

Shaukat Ali alias Billa v. The State 2015 SCMR 308; Khuda Bakhsh v. The State 2015 SCMR 735 and Mst. Sughran and another v. The State 2021 SCMR 109 ref.

Tayyab Naveed Malik and Allah Rakha alias AR Mughal for Petitioner.

Muhammad Ikram Ullah Khan Niazi, D.P.G. for the State.

2023 Y L R 1819

[Lahore]

Before Muhammad Amjad Rafiq, J

FARHAN ALI and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 28938-J of 2022, decided on 29th March, 2023.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss. 302, 324, 337-D, 337-F(i), 337-F(ii), 337-A(i), 148, 149 & 34---Murderous assault with a hatchet---Suspension of sentence pending appeal---Bail, grant of---Scope---Accused sought suspension of his sentence---Accused was charged under the allegation of causing an injury on the head of deceased with hatchet which injury was observed by the doctor as measuring 5x1 cm with a skin cut and such injury had not been declared as the cause of death---During investigation nothing was recovered from the accused; even motive had not been proved during trial---Accused was behind bars since his arrest; his criminal liability was open to assessment at the time of appraisal of evidence while hearing the main appeal---At present Court could not go deep into the evidence---Accused had made out a case of further inquiry---Sentence of the accused was suspended till final decision of the appeal.

Iftikhar Ahmed v. The State and others 2014 SCMR 7 rel.

Mazhar Ahmed v. The State and another 2012 SCMR 997 ref.

Tayyab Naveed Malik for Petitioner.

Ch. Muhammad Ishaq, Additional Prosecutor General for the State.

2023 Y L R 1835

[Lahore]

Before Aalia Neelum, J

EJAZ alias JAJJI and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 14905, Criminal Revision No. 18550 and P.S.L.A. No. 18548 of 2019, heard on 10th March, 2022.

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

----Ss. 302, 324, 336, 449, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, itlaf-i-salahiyyat-i-udw, house-trespass in order to commit offence punishable with death, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Presence of complainant at the scene of occurrence doubtful---Accused were charged that they made firing upon the complainant party after entering into their house, due to which one person died whereas three sustained injuries, however, due to the indiscriminate firing one of the accused was also hit and died whereas another was injured---Record showed that injured persons were medically examined on 07.04.2012 between 09:00 p.m. to 09:20 p.m. and all injured witnesses were brought to the hospital at 8:30 p.m. on the same day---In column of medical legal reports relating to, "name of the relative and friend" the words "by police" were written---Medical legal certificates showed that the injured were not accompanied by the complainant and they were brought by the police for medical treatment, which made the prosecution case doubtful---However, contents of the injury statements clearly revealed that injured persons were brought to the police station where their injury statements were prepared by Investigating Officer---Oral evidence could not displace the contents of the documents itself---Man may lie but a document will not---Prosecution had failed to offer a satisfactory explanation for the shifting of the injured to the hospital after preparing injury statements on 07-04-2012 by Investigating Officer---Said fact created serious doubt about the genuineness of the prosecution story including presence of the complainant at the scene of occurrence---Circumstances established that the prosecution had failed to prove its case beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Rafique and others v. The State and others 2010 SCMR 385 rel.

(b) Criminal trial---

----Medical evidence--- Scope--- Medical evidence only indicates receipt of injuries, kind of weapon used and nature of injuries but it does not name the assailant.

Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53; Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410; Amin Ali and another v. The State 2011 SCMR 323 and Muhammad Pervez and others v. The State and others 2007 SCMR 670 rel.

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

----Ss. 302, 324, 336, 449, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, itlaf-i-salahiyyat-i-udw, house-trespass in order to commit offence punishable with death, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Accused were charged that they made firing upon the complainant party after entering into their house, due to which one person died whereas three sustained injuries, however, due to the indiscriminate firing one of the accused was also hit and died whereas another was injured---Prosecution evidence showed that the prosecution witnesses had not only exaggerated the incident but had also suppressed the mode and manner of the incident---Admittedly FIR for the alleged occurrence had already been lodged on the same day i.e. 07-04-2012 by brother of deceased of the said FIR and one of the present accused was injured witness of said occurrence---Said injured was medically examined on the same day and Investigating Officer prepared his injury statement after registration of FIR on the same day under Ss. 302, 324, 148 & 149, P.P.C.---Police Constable took the injured to the DHQ Hospital for medical examination and that fact was also reflected from the Medico-Legal Certificate of injured accused and on the same day postmortem examination upon the body of deceased accused was conducted---Thereafter, the present FIR was lodged by complainant after four days of the occurrence---All the injured persons from both sides went to the concerned police station on the same day from where they were referred to the hospital for their treatment---Therefore, there was no dispute that first FIR was lodged promptly after alleged occurrence on the same day---Investigation was done against the crime reported through both FIRs---Entire prosecution evidence showed that the prosecution had suppressed the genesis and the original occurrence and had thus not presented the true version---In the said circumstances it was difficult to accept their testimony--- Circumstances established that the prosecution had failed to prove its case beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 324, 336, 449, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, itlaf-i-salahiyyat-i-udw, house-trespass in order to commit offence punishable with death, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Delay of more than four days in lodging the FIR---Effect---Accused were charged that they made firing upon the complainant party after entering into their house, due to which one person died whereas three sustained injuries, however, due to the indiscriminate firing one of the accused was also hit and died whereas another was injured---Record showed that complainant deposed that incident took place on 07.04.2012 at 5:00 p.m., whereas he reported the incident on 11.04.2012 at 12:15 a.m. (night) through his written application, whereas formal FIR was chalked at 12:25 p.m. on 11-04-2012, whereas distance of police station was 18 kilometers---Contents of the statement by injured persons clearly revealed that one injured lady died on 19.07.2015; other injured ladies were brought to the police station with their injury statements prepared by Investigating Officer on 07.04.2012---Complainant had not reported the incident to the police and later on with delay of four days reported the incident--- If the deposition of complainant was taken as correct to the extent of providing treatment to the injured ladies even then brother of the wife of complainant had not reported the incident to the police---When all the injured ladies were taken to Police Station from the place of occurrence where their injury statements were prepared and they were referred to hospital through Police Constable for medical treatment, even then the matter was not reported to the police---Said circumstances created serious doubt in the prosecution case---Circumstances established that the prosecution had failed to prove its case beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 324, 336, 449, 109, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, itlaf-i-salahiyyat-i-udw, house-trespass in order to commit offence punishable with death, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Possibility of false implication---Withholding material facts---Effect---Accused were charged that they made firing upon the complainant party after entering into their house, due to which one person died whereas three sustained injuries, however, due to the indiscriminate firing one of the accused was also hit and died whereas another was injured---Record showed that the occurrence took place on 07.04.2012 at 05:00 p.m. and as per prosecution case from 07.04.2012 onward, the injured lady was under medical treatment---Evidence did not indicate that any infection or tetanus developed quickly---No evidence was on record to show that her condition was deteriorating from the time she was admitted in the hospital---Medical records would have provided clues as to her condition and the treatment given and onset of infection but no record was produced by the prosecution---Injured lady witness appeared in witness box on 18.11.2014 and got recorded her statement and stated that she remained in hospital for two months for her treatment---Prosecution evidence was silent that whether she was re-admitted in hospital for her treatment after first discharge---True genesis of the occurrence had been withheld by the prosecution---Thus, possibility of false implication of the accused persons in the alleged crime could not be ruled out and the prosecution had failed to bring home the charges framed against the accused persons---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, 324, 336, 449, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, itlaf-i-salahiyyat-i-udw, house-trespass in order to commit offence punishable with death, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Weapons of offence with live cartridges recovered from the possession of accused persons---Reliance---Accused were charged that they made firing upon the complainant party after entering into their house, due to which one person died whereas three sustained injuries, however, due to the indiscriminate firing one of the accused was also hit and died whereas another was injured---Record showed that a repeater gun, .12-bore guns and live cartridges were recovered from the possession of the accused persons---Recoveries of repeater gun along with five live cartridges from accused, .12 bore gun along with five live cartridges from other accused and 12 bore gun along with five live cartridges from another accused on 21-06-2012 were not matched with the four crime empties secured from place of occurrence after four days of the incident on 11.04.2012--- Thus, there was no incriminating recovery available on record to connect the accused persons with the commission of offence---Circumstances established that the prosecution had failed to prove its case beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

(g) Criminal trial---

----Benefit of doubt---Principle---Benefit of every doubt is to be extended in favour of the accused.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Muhammad Tayyab Wattoo, Sher Afgan Asadi and Rai Khadim Hussain Kharal for Appellants.

Rana Ahsan Aziz, Deputy Prosecutor General with Javed A.S.I. for the State.

Agha Muhammad Arshad Sabir for the Complainant.

2023 Y L R 1865

[Lahore]

Before Sardar Ahmed Naeem and Sardar Muhammad Sarfraz Dogar, JJ

AMAN ULLAH SHAH and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 56573, Criminal Revision No. 56778 and Murder Reference No. 203 of 2019, heard on 28th March, 2022.

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

----Ss. 302, 324, 337-U, 337-A(i), 337-A(ii), 337-F(i), 337-F(v), 337-L(2), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, itlaf of teeth, shajjah-i- khafifah, shajjah-i-mudihah, damiyah, ghayr-jaifah-hashimah, causing hurt, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Presence of the eye-witnesses at the venue doubtful--- Accused were charged that they along with their co-accused assaulted the complainant party, due to which one person died whereas seven sustained injuries---Record showed that deceased after sustaining firearm injury fell down and then was lifted/shifted by the complainant and others to a rickshaw of a person who was resident of the same village but he was not interrogated during the investigation---Complainant admitted during the cross-examination that while shifting the deceased to rickshaw and hospital, his clothes got blood stains but neither his blood stained clothes were produced nor were they taken into possession by the Investigating Officer---Witnesses were at variance regarding salient features of the case---Complainant stated that only 5/6 fires were made by the accused party, whereas a witness deposed that the accused fired about hundred shots---Complainant went on to state that at the time of occurrence, he along with the deceased and other was standing in front of the shop but no specific point was suggested by the scaled site plan---Statement of draftsman revealed that the place of occurrence was surrounded by a Chowk, however, he was unable to specify the direction of the arrival of the accused and from where they left the crime scene---Said witness admitted that had the said injured witnesses told him, he could have shown the same in his site plan and whatever the witnesses told him, he incorporated those facts without addition or omission in his notes recorded on the scaled site plan, but said fact was not confirmed by injured witness who had shown his ignorance about arrival of Draftsman at the place of occurrence---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.

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

----Ss. 302, 324, 337-U, 337-A(i), 337-A(ii), 337-F(i), 337-F(v), 337-L(2), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, itlaf of teeth, shajjah-i- khafifah, shajjah-i-mudihah, damiyah, ghayr-jaifah-hashimah, causing hurt, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Injured not medically examined through police---Effect---Accused were charged that they along with their co-accused assaulted the complainant party, due to which one person died whereas seven sustained injuries---During the occurrence, as many as seven persons sustained injuries, thus, it was a police case but they all were medically examined privately on their own---Though one of the injured persons/witness claimed that he got medically examined by the police and it was also in the statement of the Investigating Officer that he dispatched all the injured to the Medical Officer for their medico legal examination---However, no plausible explanation was forthcoming on record for their medical examination without police---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.

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

----Ss. 302, 324, 337-U, 337-A(i), 337-A(ii), 337-F(i), 337-F(v), 337-L(2), 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, itlaf of teeth, shajjah-i- khafifah, shajjah-i-mudihah, damiyah, ghayr-jaifah-hashimah, causing hurt, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Injured witnesses given up---Withholding material evidence---Effect---Accused were charged that they along with their co-accused assaulted the complainant party, due to which one person died whereas seven sustained injuries---Admittedly, the prosecution was not bound to produce all the witnesses to prove its case and a case could be concluded/decided even on the basis of solitary statement---However, in the present case, seven persons sustained injuries but all of them were given up being unnecessary except three, meaning thereby that the best evidence in the case was withheld by the prosecution and a necessary inference under Art. 129(g) of Qanun-e-Shahadat, 1984, was raised that had the given up injured witnesses been produced at trial, they would not have supported the prosecution version---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) Penal Code (XLV of 1860)---

----Ss. 302, 324, 337-U, 337-A(i), 337-A(ii), 337-F(i), 337-F(v), 337-L(2), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, itlaf of teeth, shajjah-i- khafifah, shajjah-i-mudihah, damiyah, ghayr-jaifah-hashimah, causing hurt, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Acquittal of co-accused on same set of evidence---Effect---Accused were charged that they along with their co-accused assaulted the complainant party, due to which one person died whereas seven sustained injuries---Record showed that the case was registered against fourteen accused---Investigating Agency did not confirm the participation of nine accused, and they all were acquitted and the prosecution had not challenged their acquittal---If the majority of the co-accused were acquitted on the same set of evidence, then conviction of accused persons could not be sustained if strong corroboration was not forthcoming 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.

Iftikhar Hussain and another v. State PLJ 2004 SC 552; Sarfraz

alias Sappi and 2 others v. The State 2000 SCMR 1758 and Akhtar Ali

and others v. The State 2008 SCMR 6 rel.

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

----Ss. 302, 324, 337-U, 337-A(i), 337-A(ii), 337-F(i), 337-F(v), 337-L(2), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, itlaf of teeth, shajjah-i- khafifah, shajjah-i-mudihah, damiyah, ghayr-jaifah-hashimah, causing hurt, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Motive not proved---Accused were charged that they along with their co-accused assaulted the complainant party, due to which one person died whereas seven sustained injuries---Motive behind the occurrence was an altercation between three accused and one of the members of complainant party i.e. Mr. "M", who was not produced, a few moments prior to the occurrence---Details of altercation could not be found from the available material and it was not determined during the investigation, who specifically ridiculed the complainant party---During trial, the complainant mentioned / introduced another motive that the accused persons committed the occurrence as another FIR was registered against accused party---Complainant admitted during the cross-examination that he got recorded his supplementary statement on the day of occurrence and no motive was mentioned in the said supplementary statement---Admittedly, motive was not the component of murder and some crimes were motiveless---Even otherwise, the motive was hidden deep in the mind of the perpetrators of the crimes and the prosecution was not bound to introduce any motive but once a particular motive was set up and not established then, it militated against the prosecution---In any case, Mr. "M" was not examined during trial and, thus, it could safely be concluded that the prosecution failed to prove the motive---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.

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

----Ss. 302, 324, 337-U, 337-A(i), 337-A(ii), 337-F(i), 337-F(v), 337-L(2), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, itlaf of teeth, shajjah-i- khafifah, shajjah-i-mudihah, damiyah, ghayr - jaifah - hashimah, causing hurt, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Weapon of offence recovered on the pointation of accused--- Reliance--- Accused were charged that they along with their co-accused assaulted the complainant party, due to which one person died whereas seven sustained injuries---Record showed that the accused was arrested in the case and led to the recovery of crime weapon from his house jointly occupied by the family members---At the time of recovery, the weapon was lying open and so was the iron box from where the weapon was recovered/taken into possession---Recovery of weapon was witnessed by Head Constable---Objection was raised by the accused at the time of his cross-examination that he was unable to cross-examine the said witness as he was not delivered the copy of his statement recorded under S. 161, Cr.P.C., but such important and legal aspect was not seriously attended to by the trial Court---Recovered gun was dispatched to Forensic Science Agency through Police Constable/witness on 03.11.2008 and he deposited the same in the Forensic Science Laboratory on the same day but the said parcel was received in the Office of Forensic Science Laboratory on 04.11.2008, thus, safe transmission of the recovered gun was not proved---Thus, recovery of weapon was inconsequential---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, 324, 337-U, 337-A(i), 337-A(ii), 337-F(i), 337-F(v), 337-L(2), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, itlaf of teeth, shajjah-i- khafifah, shajjah-i-mudihah, damiyah, ghayr-jaifah-hashimah, causing hurt, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Statements of injured persons---Accused were charged that they along with their co-accused assaulted the complainant party, due to which one person died whereas seven sustained injuries---All the three injured had not specifically attributed their injuries to any of the accused---No role of the accused persons was mentioned in the statements of said injured persons---Said injured persons were medically examined by Medical Officers/witnesses and their Medico-Legal Reports were available on the file but they got those Medico-Legal Reports on their own which was unusual in police cases---No plausible reason was available on the file for their medical examination without intervention of police---Though all the three were injured but the story described by them appeared to be improbable and did not appeal to a prudent mind---Statement of the prosecution witnesses did not inspire confidence and was not in consonance with probabilities---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 Saleem v. The State 2010 SCMR 374 and Amin Ali v. The State 2011 SCMR 323 rel.

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

----Ss. 302, 324, 337-U, 337-A(i), 337-A(ii), 337-F(i), 337-F(v), 337-L(2), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, itlaf of teeth, shajjah-i- khafifah, shajjah-i-mudihah, damiyah, ghayr-jaifah-hashimah, causing hurt, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Delay of about 12 to 18 hours in conducting postmortem examination---Effect---Accused were charged that they along with their co-accused assaulted the complainant party, due to which one person died whereas seven sustained injuries---Medical Officer, who conducted the postmortem examination on the dead body of the deceased had opined that probable time that elapsed between injuries and death was sudden and between death and postmortem examination was 12 to 18 hours---Said witness also admitted that he had not mentioned the time of death in the relevant column of the postmortem report and the same also was not mentioned in column No. 3 of the inquest report---Said witness further admitted that no date and time was mentioned in the column of postmortem report "examination of dead body"---Medical Officer conducted the postmortem examination of the deceased promptly after receiving the dead body and police papers meaning thereby that he received the police papers after a lapse of about 12-18 hours, which suggested consultation and deliberation---Even otherwise, delayed postmortem made the prosecution case doubtful---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.

Irshad Ahmed v. The State 2011 SCMR 1190 rel.

(i) Criminal trial---

----Benefit of doubt---Principle---Prosecution primarily is bound to establish guilt against the accused beyond shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the Court to draw the conclusion whether the prosecution has succeeded in establishing accusation or otherwise and if it comes to the conclusion that the charge imputed against the accused has not been proved beyond reasonable doubt, then the accused will become entitled to acquittal on the basis of benefit of doubt.

(j) Criminal trial---

----Benefit of doubt---Principle---If there is element of doubt, as to the guilt of the accused, it must be resolved in his favour.

Mst. Nazia Anwar v. The State and others 2018 SCMR 911 and Muhammad Mansha v. The State 2018 SCMR 772 rel.

Muhammad Ahsan Bhoon for Appellants.

Ms. Maida Sobia, Deputy Prosecutor General for the State.

Muhammad Anwar Bhaur for the Complainant.

2023 Y L R 1899

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

GHULAM MUHAMMAD (deceased) through L.Rs. and others---Appellants

Versus

HAKIM-UD-DIN (deceased) through L.Rs. and others---Respondents

Civil Revisions Nos. 363-D and 421-D of 1999, decided on 12th December, 2022.

Specific Relief Act (I of 1877)---

----S.42---Transfer of Property Act (IV of 1882), S.41---Suit for declaration---Transfer by ostensible owner---Plea of bona fide purchaser for valuable consideration without notice---Suit land was allotted on the basis of claim filed by original allottee after her migration to Pakistan during partition---Dispute had arisen with regard to distribution of land among the parties---Held, that possession of petitioner over suit land was not disputed--- Respondent admitted possession of petitioner with the assertion that he was in possession as a tenant but there was no evidence on record to establish that petitioner was in possession of property as tenant---In view of facts and circumstances of the case as well as record of RL-II wherein land was allotted in two villages in lieu of claim forms submitted by original allottee, authority passed order in question dated 14-02-1981 which was quite justified---Respondent failed to convince High Court that order dated 14-02-1981 passed by authority was against facts and law and not sustainable---One respondent purchased land from other respondents during pendency of litigation as litigation started immediately after sanction of inheritance mutation dated 14-01-1965 of original allottee---Respondent was transferee during pendency of litigation who was aware of litigation, therefore, he could not get benefit of bona fide purchaser without any notice---Protection under S. 41 of Transfer of Property Act, 1882, was not available as suit property was an evacuee property---High Court set aside judgment and decree passed by Courts below against petitioners---Revision was allowed accordingly.

Additional Settlement Commissioner (Land), Sargodha v. Muhammad Shafi and others PLD 1971 SC 791; Muhammad Yousaf and others v. Settlement Commissioner Land, and others 1985 SCMR 1669 and Lakhey Khan and others v. A.C/D.C./Addl. Commissioner and others 1994 CLC 1830 ref.

Khalid Masood Ghani (in C.R. No.363 of 1999) and Muhammad Irfan Wain for Petitioners (in C.R. No.421 of 1999).

Syed Tajamul Hussain Bukhari, Malik Javed Akhtar Wains, Mujtaba Aziz and Aqsa Zahid for Respondents.

Mahar M. Imtiaz Hussain Mirali, Assistant Advocate General for Respondents Nos. 2 and 3.

2023 Y L R 1924

[Lahore (Bahawalpur Bench)]

Before Sadiq Mahmud Khurram, J

MUHAMMAD RAMZAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 127 of 2020 and Crl. Misc. No. 2664-M of 2021, decided on 13th March, 2023.

Criminal Procedure Code (V of 1898)---

----S.426---Penal Code (XLV of 1860), Ss.376 & 511---Attempt to commit rape---Suspension of sentence---Delay in disposed of appeal---More than two years had gone by and there was no likelihood of hearing of the appeal filed by the petitioner in the near future---Petitioner was not previously convicted for an offence punishable with death or imprisonment of life---Petitioner was neither a hardened, desperate or dangerous criminal nor he was accused of an act of terrorism punishable with death or imprisonment of life---More than three years had gone by since filing of appeal by the petitioner which had not been disposed of yet---Delay in hearing of said appeal had not been occasioned by the petitioner or any person acting on his behalf and there was no prospect of an early hearing of the main appeal---Application for suspension of sentence was allowed, in circumstances.

Liaqat and another v. The State 1995 SCMR 1819 ref.

Farooq Haider Malik for Petitioner.

Rao Muhammad Riaz Khan, Deputy Prosecutor General for the State.

2023 Y L R 1940

[Lahore]

Before Masud Abid Naqvi, J

Syed MUHAMMD QASIM and others---Appellants

Versus

SHAMOON and others---Respondents

Writ Petition No. 37252 of 2015, decided on 11th October, 2021.

Specific Relief Act (I of 1877)---

----S. 9---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for recovery of possession--- Maintainability---Petitioners/defendants moved application under Order VII, Rule 11 of Civil Procedure Code, 1908---Trial Court dismissed the suit declaring the same as not maintainable, however, Appellate Court accepted revision moved by the respondents/plaintiffs---Contention of the petitioners/defendants was that the respondents/plaintiffs, being co-sharers, could only file a suit for partition---Validity---Record revealed that the respondents/plaintiffs, being co-sharers, were in possession of land who were dispossessed by the petitioners/ defendants---High Court observed that the respondents/plaintiffs could file suit for recovery of possession under S.9 of the Specific Relief Act, 1877 and the Trial Court could adjudicate the dispute between the parties by allowing them to produce oral as well as documentary evidence---No illegality or infirmity having been found in the impugned judgment passed by the appellate Court declaring the suit of the respondents / plaintiffs maintainable---Constitutional petition was dismissed, in circumstances .

Contractor Haji Muhammad Alam (deceased) through Legal heirs v. Shaukat Sultan and others 2009 SCMR 688 and Mst. Resham Bibi and others v. Lal Din and others 1999 SCMR 2325 ref.

Syed Muhammad Shah for Petitioners/Defendants.

2023 Y L R 1961

[Lahore]

Before Rasaal Hasan Syed, J

MAFAIZA BEGUM---Petitioner

Versus

GHAZWANA PERVEEN and others---Respondents

Civil Revision No. 1157 of 2011, decided on 9th December, 2022.

Muslim Family Laws Ordinance (VIII of 1961)---

----S. 4---Specific Relief Act (I of 1877), S.42--- Suit for declaration---Share in estate of grandfather---Mutation of inheritance---New plea, raising of---Respondent/plaintiff claimed her share in estate of her deceased grandfather as she was daughter of pre-deceased son---Suit was decreed in favour of respondent/plaintiff by both the Courts below concurrently--- Validity--- In mutations under challenge revenue authorities allocated 1/3rd share in the estate to brothers of grandfather of respondent/plaintiff, which petitioner/ defendant supported in her written-statement---Question as to whether respondent/plaintiff would exclude brothers of her grandfather or that she would also get 1/3rdresidue of her deceased father was not raised in written-statement---No issue was framed nor any evidence was produced by petitioner/ defendant to raise or prove such plea---Even before Lower Appellate Court such question was not specifically raised as evident from the grounds of appeal and also the judgment of Lower Appellate Court---Petitioner/defendant could not raise any new plea that was not initially raised in pleadings or in evidence, for the first time before High Court---Law had to take its own course, and 1/3rd residue of deceased father of respondent/plaintiff after giving 1/3rd share to respondent / plaintiff was to be controlled by application of the rule that nearer in degree would exclude the more remote---High Court declined to interfere in concurrent findings of facts by two Courts below---Revision was dismissed, in circumstances.

Mst. Zainab v. Kamal Khan alias Kamla PLD 1990 SC 1051; Mukhtar Ahmad v. Mst. Rasheeda Bibi and another 2003 SCMR 1664 and Mian Mazhar Ali and others v. Tahir Sarfraz and others PLD 2011 Lah. 23 rel.

Zulfiqar Ahmad Mangat for Petitioner.

Badar Munir for Respondent No.1.

Respondents Nos.2 to 5: Ex parte

2023 Y L R 1972

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

ALTAF AHMAD---Petitioner

Versus

MUHAMMAD ANWAR and 4 others---Respondents

Civil Revision No. 599-D of 1983, decided on 12th December, 2022.

Punjab Pre-emption Act (I of 1913)---

----S.6---Civil Procedure Code (V of 1908), S. 115 & O.XLI, R.27---Suit for possession through pre-emption---Superior right---Commercial land---Additional evidence--- Principle---Petitioner/plaintiff sought possession of suit land on the basis of superior right of pre-emption---Suit was decreed by Trial Court but Lower Appellate Court dismissed the suit---Petitioner/plaintiff sought permission to file some revenue documents as additional evidence---Validity---Petitioner/plaintiff failed to give any plausible reasons for non-production of the documents before Trial Court---There was no reasonable ground available to petitioner/plaintiff for non-production of those documents during trial of the suit---Petitioner/plaintiff was conscious of the questions involved in the suit but he did not produce documents in question---No explanation was offered by petitioner/plaintiff that why evidence which was sought to be produced before High Court for the first time was not tendered before Trial Court---Discretion of Court should not be exercised in favour of a person who had remained indolent for years and such person should suffer consequences of his failure---Petitioner/plaintiff failed to take any step to produce evidence in question for so many years---High Court declined to exercise discretion under O. XLI, R. 27, C.P.C., in favour of petitioner/ plaintiff as he lacked vigilance which lasted for years ---Documents in question were not required by Court to decide the lis on merits and to reach a just conclusion---Petitioner/plaintiff failed to prove his right of pre-emption as suit property had changed its character from agricultural land to commercial factory land---Right of pre-emption was only to safeguard privacy of Muslim families and the same could not be enforced in case of commercial property---Question of disagreeable neighbours in such cases did not arise---Suit land was a Sakni land therefore petitioner/plaintiff could not assert to be one of proprietary bodies of the village or owner in the estate in order to claim right of pre-emption---There was no evidence on record which suggested that custom of pre-emption existed in town/sub-division---High Court declined to interfere in judgment and decree passed by Lower Appellate Court--- Revision was dismissed, in circumstances.

Bashir Ahmad v. Ahmad-ul-Haq Siddique 1985 SCMR 1232; Muhammad Yousaf v. Mst. Maqsooda Anjum and others 2004 SCMR 1049; Shtamand and others v. Zahir Shah and others 2005 SCMR 348; Syed Muhammad Hassan Shah and others v. Mst. Binat-e-Fatima and another PLD 2008 SC 564; Muhammad Siddique v. Gul Nawaz and others 2021 SCMR 1480; Ali Muhammad v. Shera and another 1987 SCMR 207; Nawab Din and 2 others v. Hassan Muhammad represented by legal heirs 1987 CLC 1656; Muhammad Hussain v. Muhammad Din and others PLJ 1975 Lah. 234; Muhammad Sadiq and another v. Abdul Aziz and another 1990 CLC 1387; Elahi Bakhsh and others v. Allah Bakhsh and others 1982 SCMR 457; Muhammad Hussain v. Ghulam Qadir PLD 2006 SC 594; Muhammad Idrees and others v. Sardar Ali 2013 SCMR 913; Bilal Ahmed and anther v. Abdul Hameed 2020 SCMR 445 and Rehman Ali through legal representatives v. Muhammad Younas and others PLD 2014 SC 680 rel.

Ch. Muhammad Riaz Jahania for Petitioner.

Tahir Muneer Malik for Respondents.

2023 Y L R 2007

[Lahore (Multan Bench)]

Before Muhammad Shan Gul, J

MUHAMMAD IMRAN---Appellant

Versus

JUDGE FAMILY COURT and others---Respondents

Writ Petition No. 278 of 2022, heard on 20th January, 2022.

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

----S. 17-A---Suit for maintenance---Summoning documentary evidence---Scope---Subsection (4) of S. 17-A allows the Family Court the facility of summon-ing relevant documentary evidence to determine the estate and resources of a husband who is to be saddled with the responsibility of providing maintenance allowance.

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

----S. 17-A---Suit for maintenance---Summoning documentary evidence---Scope---Amendment in S. 17-A of the Family Courts Act, 1964, through Punjab Family Courts (Amendment) Act, 2015, was brought about to arrest the near unbridled discretion vesting in a Judge Family Court in the matter of fixation of quantum of maintenance---Such safety valve i.e., S. 17-A(4) was specifically added for the purpose of ensuring that there is no arbitrary or to use legalese, whimsical or subjective exercise of discretion---To structure such discretion by means of provision of statute-based facilitation, a Judge Family Court was extended the space and potential of trying to gauge by means of various indicators (pay, salary, possessions, ownerships, estate, tax statement, etc), i.e., all relevant considerations, the amount of maintenance to be imposed upon a defendant.

Tauqeer Ahmad Qureshi v. Additional District Judge, Lahore and 2 others PLD 2009 SC 760; Muhammad Asim and others v. Mst. Samro Begum and others PLD 2018 SC 819; Khalid Mahmood v. Naseem Akhtar and others 2019 MLD 820; Nazia Bibi and others v. Additional District Judge, Ferozewala and others PLD 2018 Lah. 916 and Muhammad Shakir v. Additional District Judge, Islamabad-West and 5 others 2021 CLC 809 rel.

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

----S. 5, Sched.---Suit for maintenance---Breastfeeding maintenance allowance---Scope--- Breastfeeding maintenance allowance is recognized jurisprudentially---Such allowance is recognized as being in line with the welfare of the child and it has been held that if a mother is not awarded such an allowance the sustenance of the child may suffer.

Muhammad Aslam v. Muhammad Usman and others 2004 CLC 473 and Naveed Ahmed v. Mst. Mehwish Riaz and others 2019 CLC 511 rel.

Malik Muhammad Siddique Kamboh for Petitioner.

Rizwan Ahmad Khan and Zafar Iqbal, ASI for Respondent No.2.

2023 Y L R 2030

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf and Sultan Tanvir Ahmad, JJ

CIVIL AVIATION AUTHORITY through Airport Manager---Appellant

Versus

Haji PERVEZ KHAN and 4 others---Respondents

I.C.A. No. 296 of 2010, decided on 5th April, 2023.

(a) Punjab Land Acquisition Rules, 1983---

----Rr. 14 & 15---Acquisition of land---Restoration of possession---Purpose of acquisition abandoned--- Effect---Appellant/land acquiring authority was aggrieved of order regarding return of land in question which was acquired from respondents/ex- land owners---Validity---Power to restore possession of acquired land to the persons from whom it was acquired laid with the Government and that too when the department of government or a local authority for which land was acquired proposed to abandon the public purpose for which it was acquired--- Respondents/ex-land owners were claiming restoration of meagre part of acquired land on the ground that it had become surplus---Provision of R. 14 of Punjab Land Acquisition Rules, 1983, could not be stretched in favour of respondents/ex-land owners---Matter relating to return of acquired land could not be left at the whims of ex-land owners---Allowing respondents/ex-land owners to claim part of acquired land having become surplus would open a pandora box and a flood gate for other land owners as well---Intra Court Appeal was allowed accordingly.

Syed Nazar Abbas Naqvi v. Commissioner, Sargodha Division, Sargodha and 29 others 1996 SCMR 1277; Rahm Dad and 7 others v. Managing Director, Fauji Foundation, Rawalpindi Cantt. and 2 others PLD 2010 Lah 349; Government of Balochistan CWPP&H Department and others v. Nawabzada Mir Tariq Hussain Khan Magsi and others 2010 SCMR 115; Capital Development Authority through Chairman and others v. Dr. Abdul Qadeer Khan and others 1999 SCMR 2636; Kohinoor Textiles Mills Ltd. v. Capital Development Authority, Islamabad PLD 2001 Lah. 379; Province of Punjab through Secretary Excise and Taxation Department, Lahore and others v. Murree Brewery Company Limited (MBCL) and another 2021 SCMR 305 and Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital through Principal and others 2019 SCMR 648 ref.

(b) Administration of justice---

----Practice and procedure---Question of law---Estoppel, principle of---Scope---Question of law can be raised at any stage of proceedings---There can be no estoppel against law.

Anis-ud-Din along with Ahtsham Aslam, Senior Assistant Director Estates, Civil Aviation Authority for Appellant.

Sardar Abdul Raziq Khan for Respondents Nos. 1 to 4.

Malik Amjad Ali, Additional Advocate-General Punjab for Respondent No.5.

2023 Y L R 2046

[Lahore]

Before Muhammad Waheed Khan, J

ABDULLAH KHAN---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 9354-B of 2023, decided on 7th June, 2023.

Criminal Procedure Code (V of 1898)---

----S.497(1), 3rd proviso & 4th proviso---Penal Code (XLV of 1860), Ss. 302, 324, 337-F(i), 337-F(iii), 337-F(v), 337-F(vi), 148 & 149---Qatl-i-amd, attempt to qatl-i-amd, hurt, rioting and unlawful assembly---Bail, refusal of---Delay in conclusion of trial occasioned by accused---Delaying tactics---Conduct of the accused---Record revealed an observation made by the Trial Court, in one of the orders mentioned at interim order sheets, with respect to the conduct of the accused persons, including the petitioner, who were applying every kind of delaying tactics, exerting pressure and displaying their influence in different ways during their trial---Although under 3rd proviso of subsection (1) to S. 497 of Criminal Procedure Code, 1898, an accused could be released on bail, who being an accused of offence punishable with death had been detained for such offence for a continuous period exceeding two years and whose trial for the said offence had not been concluded, however, 4th proviso of subsection (1) to S. 497 of Criminal Procedure Code, 1898, stipulated another exception---As per both the exceptions, the right to release on bail on the ground of delay in conclusion of trial was not available to an accused if; (i) the delay in conclusion of the trial was occasioned by an act or omission of the accused or by any other person acting on his behalf; (ii) the accused was a convicted offender for an offence punishable with death or imprisonment for life or was in the opinion of the Court a hardened, desperate or dangerous criminal or was accused of an act of terrorism punishable with death or imprisonment for life---Report (having been requisitioned by the High Court), inter alia, revealed multiple reasons for the delay in trial in the present case (like the bar was on strike, leaves availed by the Presiding Officer, pendency of the application(s) moved by a party) and as many as 25 adjournments having been sought by each party---However, two prosecution witnesses, examination-in-chief of whom had been recorded more than two and half years ago were not being cross-examined by the defense/petitioner on one pretext or the other; and the prosecution witnesses had already given up its two other witnesses, one being unnecessary while the other for reason that he (said witness) had not been appearing before the Court due to life threats extended by the accused persons---Thus, accused party had sought adjournments repeatedly on crucial hearings without any sufficient cause especially on the hearing fixed for cross-examination of prosecution witnesses already recorded and had also threatened the prosecution witness---Bail was refused to the petitioner, in circumstances.

Shakeel Shah v. The State and others 2022 SCMR 1; Abdul Rashid v. State 1998 SCMR 897; Major (R) Muhammad Iftikhar Khan v. The State and another 2022 SCMR 885 and Babar Hussain v. The State and others 2016 SCMR 1538 ref.

Sahir Mehmood Bhatti for Petitioner.

Miss Noshe Malik, Deputy Prosecutor General with Iqbal SI for the State.

2023 Y L R 2059

[Lahore]

Before Muhammad Shan Gul, J

AHMAD KHAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, JHANG and 2 others---Respondents

Writ Petition No. 50484 of 2022, heard on 6th October, 2022.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.--- Constitution of Pakistan, Art. 199---Constitutional petition---Dower---Plot in place of money---Value of plot---Determination---Parties were husband and wife inter se which relationship ended in divorce---In lieu of dower money a piece of land was to be transferred---Family Court and Lower Appellate Court decided the matter in favour of respondent/wife and directed petitioner/husband to pay Rs.1,000,000/- as market value of plot in question---Validity---Family Court and Lower Appellate Court accepted claim regarding 5 Marla plot and had granted relief in shape of alternate market price of the same---Such claim was not contested by petitioner/husband before High Court, the only issue left was determination of market value---High Court set aside such determination as the same was made erroneously and without relying upon any evidence---High Court directed Executing Court to determine market value of a plot of 5 Marla situated in the locality after thorough judicial inquiry on the basis of evidence by appointing Local Commission---Constitutional petition was allowed accordingly.

Dr. Asma Ali v. Masood Sajjad and others PLD 2011 SC 221; Dua Aneeqa v. Adnan Jahangeer and 2 others 2021 MLD 1208; Mst. Humaira Majeed v. Habib Ahmad and 2 others PLD 2012 Lah. 165 and Shahid Mehmood v. Mst. Naureen Ijaz and 2 others 2012 MLD 1594 ref.

Mst. Razia Begum v. Jang Baz and 3 others 2012 CLC 105; Muhammad Shoaib and another v. Mst. Shameem Akhtar and 2 others 2014 CLC 1307 and Mst. Mehbooba v. Abdul Jalal 1996 SCMR 1063 rel.

Malik Sirbuland for Petitioner.

Ms. Aqeela Sharif Mirza for Respondent No.3.

2023 Y L R 2084

[Lahore (Multan Bench)]

Before Sadiq Mamud Khurram and Muhammad Amjad Rafiq, JJ

IMRAN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 1065-J, 691 and Murder Reference No. 96 of 2019, decided on 28th September, 2022.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Accused were charged that they in furtherance of their common intention made firing upon complainant party, due to which one person died whereas other was injured---Admitted position was that no enmity whatsoever existed between the parties so as to tag the accused persons unnecessarily or falsely for a capital charge---Motive evidence was not adduced in support of crime tragedy because neither maternal nephew of complainant appeared as witness nor the Court was asked to summon him despite the fact he was living in the house of deceased---Complainant primarily while stating roles of both the accused persons supported the prosecution narrative including time, date and place of occurrence---Although when faced with cross-examination, complainant deposed certain facts which the defence claimed in its their favour but circumstances established that the prosecution had proved case against the accused persons beyond any shadow of reasonable doubts---However due to some mitigating factors, the death sentence awarded to one of the accused persons was altered to imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Presence of injured at spot not doubtful---Accused were charged that they in furtherance of their common intention made firing upon complainant party, due to which one person died whereas other was injured---Claim of defence was that why both the injured were not shifted to hospital together, which created doubt about the presence of injured at the spot---Validity---When there was a simple injury that did not require immediate attention compared to a serious one sustained by the deceased, justification for not immediately sending injured to hospital seemed plausible and did not cast any doubt on the presence of injured particularly when Medical Officer had not observed any fabrication in his injury nor it was disputed in essence---Even otherwise it was not expected to select a boy of thirteen years (as per MLR) to fabricate an injury of like nature and at the locale---Thus, separate dispatching of injured had no negative bearing or adverse impact on prosecution case---Circumstances established that the prosecution had proved its case against the accused persons beyond any shadow of reasonable doubts, however due to some mitigating factors, the death sentence awarded to one of the accused persons was altered to imprisonment for life---Appeal was dismissed with modification in sentence.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Statement of injured recorded by the Investigating Officer---Scope---Accused were charged that they in furtherance of their common intention made firing upon complainant party, due to which one person died whereas other was injured---Recording of statement of injured by the police was seriously taken as ground to discard his evidence with the stance that injured claimed his statement was recorded by Investigating Officer whereas in the police record his statement was recorded by another Police Officer---During his cross-examination Investigating Officer denied recording of statement of injured and injured also did not name him as the man who recorded his statement rather said in the opening lines of his cross-examination that police recorded his statement on the night of occurrence---Complainant was also present at that time---Complainant had already lodged FIR of the case prior to recording of said statement---Record showed that case was taken up by Police Officer/ASI on receiving information who then was not assigned the duty to investigate, his role at the most was of first responder to the crime scene and as per S. 157, Cr.P.C. he performed certain functions at the place of occurrence till the entrustment of investigation to Investigating Officer---First responder could perform number of functions at the site like; to preserve the scene of crime from disturbance; to secure the spot recoveries and draft the crime scene as it looked like at his first sight---First responder could record particulars of and secure the presence of potential witnesses and obtain information relating to case---In the present case witnesses were at a hospital, therefore, said Police Officer on receiving information reached there and recorded particulars of witnesses including injured---Certainly, in order to obtain information, he had talked to the said injured, as his injury statement was prepared by him which the witness could term as recording of statement---Circumstances established that the prosecution had proved its case against the accused persons beyond any shadow of reasonable doubts, however due to some mitigating factors, the death sentence awarded to one of the accused persons was altered to imprisonment for life---Appeal was dismissed with modification in sentence.

Nasir alias Nasiree and another v. The State and another 2021 SCMR 1614 rel.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Night time occurrence---Source of light established---Accused were charged that they in furtherance of their common intention made firing upon complainant party, due to which one person died whereas other was injured---Complainant and injured in their examination in chief had mentioned the presence of bulb (as mentioned in the FIR) at the time of occurrence---Presence of complainant and injured was not seriously disputed by the defence nor any attempt was made to shatter it---In the present case, it was the desperation of defence to argue that bulb and energy saver were two different things and much time was taken to argue that point, yet by implication it was admitted that source of light was available---Defence had also disputed that why source of light (energy saver) was not taken into possession by Police Officer/ASI at the time of his first visit despite the fact that he collected bullet-casings at the spot---What was required from a first responder (Police Officer/ ASI) was rendered by him and taking the energy saver into possession by another Investigator did not diminish its efficacy when no evidence was brought on record that house of occurrence was not wired for using electricity---Circumstances established that the prosecution had proved its case against the accused persons beyond any shadow of reasonable doubts, however due to some mitigating factors, the death sentence awarded to one of the accused persons was altered to imprisonment for life---Appeal was dismissed with modification in sentence.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Presence of eye-witnesses at the place and time of occurrence proved---Accused were charged that they in furtherance of their common intention made firing upon complainant party, due to which one person died whereas other was injured---Accused were known to both the witnesses who had also stated about the distance of houses of accused persons during cross-examination---Reference was made to statement of injured witness who too went on to say that accused was resident of one bigha from his house whereas other accused was residing at a distance of 6/7 kilometers from the place of occurrence---In such circumstances, said witnesses had proved their presence at the relevant time and viewed the occurrence with their own eyes at the place of occurrence, therefore, their testimonies were consistent and confidence inspiring---Circumstances established that the prosecution had proved its case against the accused persons beyond any shadow of reasonable doubts, however due to some mitigating factors, the death sentence awarded to one of the accused persons was altered to imprisonment for life---Appeal was dismissed with modification in sentence.

Gul Zarin and others v. Kamal-ud-Din and others 2022 SCMR 1085 rel.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Medical evidence corroborating ocular account---Accused were charged that they in furtherance of their common intention made firing upon complainant party, due to which one person died whereas other was injured---Medical evidence in the present case was in line with locale, nature and probable time and duration of injuries on the person of both the injured---Blackening was observed by the Medical Officer in the injury of injured which stood corroborated from inter se distance between assailants and the victim, which fact came out during cross-examination of injured and more clearly from explanatory evidence in the form of site plan which was recorded as ½ karam---Thus, there was no deliberate delay in examination of both the injured---Similarly, postmortem examination was also prompt because deceased was examined in an injured condition at 1:40 a.m. whereas he died after four hours at 5:45 a.m. in the morning and his body being in the hospital was dispatched to the mortuary where his postmortem was conducted at 8:00 a.m. by Medical Officer who observed the injuries on both thighs and declared them to be caused with firearm weapon resulting into death of deceased---Defence had also failed to point out any serious flaw in the medical evidence which was supportive to the ocular account, therefore, it could be relied upon---Circumstances established that the prosecution had proved its case against the accused persons beyond any shadow of reasonable doubts, however due to some mitigating factors, the death sentence awarded to one of the accused persons was altered to imprisonment for life---Appeal was dismissed with modification in sentence.

Noor Zaman v. The State 2022 SCMR 1002 rel.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence and crime empties---Reliance---Accused were charged that they in furtherance of their common intention made firing upon complainant party, due to which one person died whereas other was injured---Record showed that both the accused persons were arrested on 03.06.2018 by Investigating Officer---Recovery of weapon of offence was effected from accused persons on 11.06.2016---Both Kalashnikovs were sent to Forensic Science Agency and six crime empties were found wedded with the Kalashnikov recovered from one of the accused---It was inconsequential that bullet-casings were sent to Forensic Science Agency after arrest of the accused persons---Fact of recovery of weapon of offence was also not seriously objected by the defence---Circumstances established that the prosecution had proved its case against the accused persons beyond any shadow of reasonable doubts, however due to some mitigating factors, the death sentence awarded to one of the accused persons was altered to imprisonment for life---Appeal was dismissed with modification in sentence.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Sentence, quantum of---Mitigating circumstances---Motive not proved---Accused were charged that they in furtherance of their common intention made firing upon complainant party, due to which one person died whereas other was injured---Record showed that the prosecution had failed to prove the motive in the present case, therefore, it was not a case of capital sentence---Moreover, recovery of weapon of offence and positive Forensic Science Agency Report were inconsequential as bullet casings were sent to the laboratory after arrest of the accused---Further the injuries that caused death of deceased were attributed to both the accused persons, therefore accused was not solely responsible for such act---Keeping in view the said factors, the conviction of present accused persons for qatl-i-amd of deceased was upheld, however sentence of death awarded to one of the accused awarded by trial Court was altered to imprisonment for life---Appeal was dismissed with modification in sentence.

Abdul Wasay and others v. The State and others 2021 SCMR 1059; Muhammad Riaz and another v. The State and another 2007 SCMR 1413 and Muhammad Sharif v. The State PLD 2009 SC 709 rel.

Malik Muhammad Saleem and Muhammad Usman Sharif Khosa for Appellants.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

Qazi Saddar-ud-Din for the Complainant.

2023 Y L R 2104

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

Ms. ZEESHAN ZIA RAJA---Petitioner

Versus

Dr. NADEEM KIANI and 8 others---Respondents

Writ Petition No. 58860 of 2021, decided on 18th October, 2021.

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

----O. XXXIX, Rr. 1, 2(3) & S. 151---Land Acquisition Act (I of 1894), S. 56---Contempt of Court--- Constitutional petition--- Suit for declaration---Respondent/District Registering Authority passed order for cancellation of 22 schools of the plaintiff---Civil Court suspended said order and restrained the Registering Authority from cancelling registration of the same---Plaintiff also filed separate appeal against the said order before the Commissioner, wherein petitioner's counsel raised objection as to maintainability of the said appeal---Commissioner sine die adjourned said appeal till decision of aforesaid suit, however, on application of the petitioner, he proceeded with the appeal---Civil Court issued ad-interim injunction---Respondent moved contempt application against petitioner and respondents who had cancelled the said registration and restrained from using the brand name of the schools---Petitioner moved application under S.151, C.P.C., for summary dismissal of the contempt petition being non-maintainable---Trial Court suspended said two orders and held the contempt petition to be maintainable---Petitioner's appeal was also dismissed---Validity---Petitioner's application under S. 151, C.P.C., was not moved in the main suit rather the same was filed in contempt proceedings---Under the provisions of R. 2(3) of O. XXXIX of Civil Procedure Code, 1908, the Court was not competent to restore the status quo ante---Court had got inherent jurisdiction to bring back the party to a position where it originally stood as if the order had not been contravened, however, such an order could only be passed in suit and not in proceedings---Equity could not be given precedence/over-riding effect over the clear mandate of law---Courts were supposed to confine themselves within the contours drawn by the law and they could not be permitted to travel beyond the permissible scope of a provision/ statute---Interim order was in field when another order was passed---Restraining order would continue provided no lapse was attributable to the conduct of plaintiff, despite the fact that no specific order was passed extending the order granting status quo---Argument as to grant of final relief in the garb of interim injunction could be raised before the court concerned, which could suspend the order if concluded that order was prima facie illegal/without lawful authority---Constitutional petition was allowed; impugned order/judgment were set-aside being illegal/without lawful authority; Trial Court was declared to be at liberty to pass order in application under O. XXXIX, Rr. 1 & 2 if it would hold the field.

Muhammad Sabir Khan and 13 others v. Rahim Bakhsh and 16 others PLD 2002 SC 303; Muhammad Aslam v. Muhammad Nazeer and 2 others 2011 MLD 1449; Bakhtawar and others v. Amin and others 1980 SCMR 89 and Director General, National Savings, Islamabad v. Balqees Begum and others PLD 2013 SC 174 rel.

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

----O. XXXIX, R. 2---Scope of O. XXXIX, R. 2 was limited to determine the issues of disobedience/ breach of the order and fixing responsibility on person guilty of such disobedience/breach.

Muhammad Shahzad Shaukat, M. Ali Raza Saeed, M. Uzair Khan and Mirza Waqas Baig for Petitioner.

Waqar A. Sheikh, Tassawar Sohail and Syed Faisal G. Meeran for Respondent.

Barrister Ameer Abbas Ali Khan, A.A.G. for Official Respondents.

Muhammad Imran Sheikh, Additional District Judge/Senior Research Officer and Ahmad Zia Ch., Civil Judge/ Research Officer, LHCRC.

2023 Y L R 2120

[Lahore (Multan Bench)]

Before Sadiq Mamud Khurram and Muhammad Amjad Rafiq, JJ

ABDUL AZIZ and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 547-J, 551-J, 546-J and Murder Reference No. 47 of 2018, heard on 8th November, 2022.

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

----Ss. 302, 324, 337-F(v) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, itlaf-i-udw, common intention---Appreciation of evidence---Ocular account supported by medical evidence---Accused were charged that they made firing upon the complainant party, due to which father and brother of the complainant died whereas complainant and two of his relatives were injured---Ocular account furnished by complainant and an eye-witness was supported by two injured witnesses who stated the narrative of prosecution in consistent, coherent and confidence inspiring way while mapping all-necessary details encompassing the effective roles of the accused persons in conformity with prosecution story---Identity of accused in the dark night though was not disputed yet sufficient light was available near the crime scene due to marriage function and it was admitted position that parties were ascending or descending cousins, therefore, identity remained no issue throughout---Though all the witnesses were related to the deceased and injured, yet they could not be termed as interested because their presence at the event of marriage of their cousin was natural---Injuries viewed during the occurrence by the witnesses stood verified through prompt Medico-Legal examination of two inured witnesses and the postmortem of two deceased by Medical Officer---Though primarily one injury on the front of chest was incorrectly mentioned by the complainant for reporting the crime yet thorough second statement on the same day it was stated to be on the back whereas two witnesses remained firm in stating the role of accused since inception---Even otherwise in a state of panic it was not expected from a witness to state the roles of accused with such precision so as to expect a photographic narration---Medical officer declared the injuries as result of firearm weapon and description stood matched with the inter se distance between the accused persons and targeted victims as reflected from the explanatory evidence in the form of site plan---Medical evidence lent support to ocular account---Circumstances established that the prosecution had succeeded in proving its case against the accused persons, however, due to mitigating circumstances, the death sentence was altered to imprisonment for life---Appeal was partly allowed with modification in sentence.

Saeedullah Khan v. The State 1986 SCMR 1027 ref.

Saeedullah Khan v. The State 1986 SCMR 1027 rel.

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

----Ss. 302, 324, 337-F(v) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, itlaf-i-udw, common intention---Appreciation of evidence---Recovery of pistols on the lead of accused and crime empties secured from the crime scene---Reliance---Accused were charged that they made firing upon the complainant party, due to which father and brother of the complainant died whereas complainant and two of his relatives were injured---Pistols recovered on the lead of accused persons were used by the prosecution to obtain evidence of its matching with crime empties secured from the crime scene---Safe custody of such weapon and transmission chain remained intact up to Forensic Science Agency supported by the deposition of relevant witnesses resulted in generation of expert report showing the mechanical operating condition of pistols of all the accused persons and their matching with some of the crime empties---This provided big support to prosecution as corroborative piece of evidence---Circumstances established that the prosecution had succeeded in proving its case against the accused persons, however, due to mitigating circumstances, the death sentence was altered to imprisonment for life---Appeal was partly allowed with modification in sentence.

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

----Ss. 302, 324, 337-F(v) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, itlaf-i-udw, common intention---Appreciation of evidence---Motive proved---Accused were charged that they made firing upon the complainant party, due to which father and brother of the complainant died whereas complainant and two of his relatives were injured---Motive behind the occurrence was divorce given by one of the deceased to the sister of the accused persons---Motive played a vital role in determination of criminal liability of the perpetrators when they were claimed to have shared common intention, however, in the present case, no serious effort was made to throw light with more zeal on such part of the story---Mere production of divorce certificate and passport of deceased did not absolve the prosecution to bring on the record the relevant evidence through the witnesses---However, it was proved that accused persons came armed at the place of occurrence for doing something wrong---Accused persons did not prefer to adduce defence evidence despite their early effort to distort the facts that occurrence took place due to firing in jubilation and availability of a video film of marriage ceremony containing some facts contra to prosecution case---Yet no such video was produced during the trial nor Investigating Officer was aware of such video---Defence claimed that occurrence took place at the spur of the moment, therefore, accused persons could not be expected to have shared any common intention in commission of offence and they were liable for sentence on the basis of their individual roles if the case was proved against them---However, in the arena of common intention different parameter were in vogue which were applied, and depending upon the facts of each case, principle of vicarious liability changed its meaning to outline an appropriate sentencing regime---Such parameters had been thrashed in depth in the present case to see their proper application corresponding to claim and evidence of the parties---Circumstances established that the prosecution had succeeded in proving its case against the accused persons, however, due to mitigating circumstances, the death sentence was altered to imprisonment for life---Appeal was partly allowed with modification in sentence.

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

----Ss. 302, 324, 337-F(v) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, itlaf-i-udw, common intention---Appreciation of evidence---Common intention, applicability of---Accused were charged that they made firing upon the complainant party, due to which father and brother of the complainant died whereas complainant and two of his relatives were injured---In the present case, evidence spoke that accused persons nourished grudge against deceased who had reportedly divorced their sister four years back and went abroad---Arrival of said deceased in Pakistan just some days before the occurrence had prompted them to commit his murder---Prosecution story at one side was requested to be believed only on production of divorce deed in evidence along with passport of deceased, but without producing any evidence of rift between the parties long after such divorce, when they were related to each other as cousins---It was not clear that how the occurrence started, particularly when accused though armed with pistol preferred to capture complainant against whom neither any motive was attributed nor he was the target of the accused persons, whereas occurrence inflated only when deceased and his father stepped forward to rescue the complainant---All the accused persons in a frenzy targeted not only the deceased, but also his father who had no axe to grind against the accused persons---Similar was the situation with two injured persons---Every accused targeted their victim as per space available to them---Whole scenario depicted no communion of minds and no evidence of common intention was available on the record---Thus, on the basis of similar intention each accused was responsible for his individual acts played by them during the occurrence---Circumstances established that the prosecution had succeeded in proving its case against the accused persons, however, due to mitigating circumstances, the death sentence was altered to imprisonment for life---Appeal was partly allowed with modification in sentence.

Haji Khudai Dost and another v. The State 2005 PCr.LJ 520; Bhaba Nanda Sarma and others v. The State of Assam AIR 1977 SC 2252; Muhammad Akbar and 2 others v. The State PLD 1991 SC 923; State of Maharashtra v. Prabhakar Pandurang Sangzgiri PLD 1965 SC (Ind.) 176; Abdul Waheed and another v. The State 1988 PCr.LJ 645; Hasan Din v. Muhammad Mushtaq 1978 SCMR 49; Piran Dita v. The State 1993 SCMR 1934; Bashir Ahmad and others v. The State PLD1988 SC 68; Pervaiz Akhtar v. The State 1985 SCMR 1422; Sher Zaman and 3 others v. The State 1973 SCMR 503; Manzoor Masih v. State PLD 1995 SC 307; Bashir Ahmad and others v. The State PLD 1988 SC 86; Sher Khan and others v. The State 1991 SCMR 241; Misbahuddin and others v. The State PLD 1983 SC 79; Hidayatullah and others v. The State 1976 PCr.LJ 1067; Manzoor and 2 others v. The State 1986 PCr.LJ 2696; Nazar Hussain and others v. Crown PLD 1951 Lah. 222; Muhammad Siddique v. The State 1993 SCMR 2114; Gul Zarin and others v. Kamal-ud-Din and others 2022 SCMR 1085; Muhammad Ashraf alias Nikka v. The State 2022 SCMR 1328; Muhammad Iqbal and 3 others v. The State 1992 SCMR 1517 and Shoukat Ali v. The State PLD 2007 SC 93 rel.

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

----Ss. 302, 324, 337-F(v) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, itlaf-i-udw, common intention---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances--- Lack of common intention--- Accused were charged that they made firing upon the complainant party, due to which father and brother of the complainant died whereas complainant and two of his relatives were injured---Record showed that it was not a case of capital sentence against two accused because they made only one fire shot on the person of deceased and that too in a situation not clearly stated through cogent evidence---Otherwise, the roles of said two accused of having caused individual injuries respectively on the persons of deceased stood established, therefore, their conviction under S. 302(b) P.P.C for their individual roles was upheld, however, keeping in view the individual role of accused persons, their conviction and sentences passed for sharing common intention for each other's roles were set-aside; their appeals were partly allowed and death sentences were altered to imprisonment for life.

Muhammad Riaz and another v. The State and another 2007 SCMR 1413 and Muhammad Sharif v. The State PLD 2009 SC 709 rel.

Malik Muhammad Saleem for Appellants.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

Muhammad Usman Sharif Khosa for the Complainant.

2023 Y L R 2140

[Lahore]

Before Raheel Kamran, J

MUHAMMAD NAZEER---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SIALKOT and others---Respondents

Writ Petition No. 30090 of 2023, decided on 20th June, 2023.

(a) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 6---Qanun-e-Shahadat (10 of 1984), Art. 163---Oaths Act (X of 1873), Ss. 8, 9, 10 & 11---Polygamy---Acceptance or denial of claim on oath---Scope---Respondent (wife) moved a complaint against the petitioner (husband) under S. 6(5) of the Muslim Family Laws Ordinance, 1961, for contracting second marriage without permission of the Arbitration Council---During the course of cross-examination upon the respondent, a question regarding birthplaces of her elder children was put to her, in response to which she offered if the petitioner took oath on Holy Quran that the two children were born at his house, she would withdraw the complaint, which was accepted by the petitioner---However, the Family Court observed that oath on Holy Quran was not applicable in criminal proceedings---Petitioner filed an appeal before the Sessions Judge, which was dismissed---Validity---Article 163 of the Qanun-e-Shahadat, 1984, governs acceptance or denial of claim on oath, application whereof to laws relating to criminal proceedings has expressly been excluded under clause (3)---Additionally, S. 8 of the Oaths Act, 1873, specifies the power of Court to tender certain oaths and S. 9 of the Oaths Act, 1873, embodies discretionary power of the Court to ask party or witness whether he will make oath proposed by the opposite party, while S. 10 outlines the administration of oath if accepted and S. 11 outlines the status of the evidence so given to be conclusive proof of the matter as against the person who offered to be bound as above---Provisions of Ss. 8 to 11 of the Oaths Act, 1873, are not applicable to criminal proceedings---No illegality or jurisdictional error was found in the impugned orders---Constitutional petition was dismissed.

Muhammad Amir Malik v. The State 1991 MLD 226 rel.

Mst.Bashiran Bibi v. Nisar Ahmad Khan PLD 1990 SC 83 ref.

Sajid Mehmood v. Mst. Shazia Azad and others 2023 SCMR 153 distinguished.

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

----Ss. 17 & 20---Muslim Family Laws Ordinance (VIII of 1961), S. 6---Provisions of Evidence Act and Code of Civil Procedure not to apply---Family Court as Judicial Magistrate---Criminal proceedings--- Scope--- Section 17(1) provides that the application of Qanun-e-Shahadat, 1984, is excluded in respect of proceedings on matters falling in Part I of the Schedule to the Family Courts Act, 1964---However, such exclusion has no applicability vis-à-vis criminal proceedings for the offences specified in Part II of the Schedule or S. 20 of the Family Courts Act, 1964, including the offence under S. 6(5) of the Muslim Family Laws Ordinance, 1961---Therefore, the provisions of Qanun-e-Shahadat, 1984, are applicable in criminal proceedings before the Family Court.

(c) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 6---Polygamy---Scope---Polygamy is a subject matter covered by S. 6 of the Muslim Family Laws Ordinance, 1961---Subsection (1) postulates that no man, during the subsistence of an existing marriage, shall, except with the previous permission in writing of the Arbitration Council, contract another marriage, nor shall any such marriage contracted without such permission be registered under the Muslim Family Laws Ordinance, 1961---Subsection (5) stipulates consequences for contracting another marriage without the permission of the Arbitration Council in terms of making him liable to pay immediately the entire amount of the dower, whether prompt or deferred, due to existing wife or wives, if not so paid, to be recovered as arrears of land revenue and prescribes it to be an offence triable upon complaint and punishable on conviction with simple imprisonment which may extend to one year and with fine of five hundred thousand rupees.

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

----S. 20---Family Court as Judicial Magistrate---Scope---Section 20 of the Family Courts Act, 1964, deems the Family Court to be the Judicial Magistrate of the first class under the Code of Criminal Procedure, 1898, for taking cognizance and trial of any offence, inter alia, under the Muslim Family Laws Ordinance, 1961---Cognizance of such an offence can be taken on the complaint of the Union Council, Arbitration Council or the aggrieved party and the Family Court is required to conduct the trial of an offence in accordance with the provisions of Chapter XXII of the Cr.P.C. relating to summary trials.

Muzaffar Nawaz v. Ishrat Batool and another 2022 YLR 1920 rel.

2023 Y L R 2164

[Lahore]

Before Sardar Ahmed Naeem and Shakil Ahmad, JJ

YASIR PARVEZ and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 53173-J, 53156-J of 2017, Criminal Revision No. 183857 of 2018 and Murder Reference No. 253 of 2017, heard on 28th April, 2022.

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

----Ss. 302(b), 396 & 412---Qatl-i-amd, dacoity with murder, dishonestly receiving property stolen in the commission of dacoity---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of the brother of complainant and injuring the complainant during dacoity---Record showed that complainant failed to specifically mention in complaint that whether accused persons named in complaint were in fact previously known to him---During the course of cross-examination both of the witnesses of ocular account stated that accused persons were previously known to them---Complainant had also failed to mention specific seat of injuries said to have been caused by accused persons on the head of deceased---Even complainant failed to specifically mention the part of his body where he received butt blows given by the unknown accused person---Complainant had also not stated anything in complaint as to whether any of the accused demanded or asked either him or the deceased to hand over cash---Complainant failed to specifically mention in complaint as to who was carrying cash which was claimed to have been drawn from the bank and it was also not specifically mentioned that from whom the accused persons forcibly snatched the money----It had not been mentioned in complaint that which of the accused persons snatched the cash---Not essential for the complainant to give each and every detail of the occurrence in the complaint on the basis of which FIR is lodged, however, at the same time it is equally correct that certain necessary and essential details leading to the occurrence are always required to be mentioned in the application on the basis of which FIR is lodged---Circumstances established that the prosecution failed to prove its case against accused persons beyond reasonable shadow of doubt---Appeal against the conviction was allowed accordingly.

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

----Ss. 302(b), 396 & 412---Qatl-i-amd, dacoity with murder, dishonestly receiving property stolen in the commission of dacoity---Appreciation of evidence---Benefit of doubt---Unnatural conduct of the complainant---Accused were charged for committing murder of the brother of complainant and injured the complainant during dacoity---Bare reading of the story as narrated in the complaint reflected that complainant and his brother were going back to their home after taking cash from a bank, and were vividly alert enough to notice being chased by accused persons---During the course of cross-examination, complainant stated that the whole area from the bank towards their home was a populated one and police office was on the way---Despite that, as per own showing of complainant during cross-examination, they did not make any attempt to report the matter to police---Even no attempt was shown to have been made by complainant and his brother to avoid being chased by accused persons by taking shelter at any safe place on the way---Such conduct shown by complainant was against natural human behavior---Circumstances established that the prosecution failed to prove its case against accused persons beyond reasonable shadow of doubt---Appeal against the conviction was allowed accordingly.

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

----Ss. 302(b), 396 & 412---Qatl-i-amd, dacoity with murder, dishonestly receiving property stolen in the commission of dacoity---Appreciation of evidence---Benefit of doubt---Dishonest improvements made by the complainant---Accused were charged for committing murder of the brother of complainant and injuring the complainant during dacoity---Complainant, who besides giving the narration as mentioned in complaint, deposed that accused persons after forcibly getting them down from motorcycle asked them to handover the amount which they had brought from a bank---It was further deposed by complainant that accused snatched Rs.100,000/- from the deceased forcibly at gunpoint and left the place of occurrence whereafter they shifted deceased in injured condition at THQ Hospital and he moved application before the police---Complainant further deposed that his brother was referred to DHQ Hospital, and was further referred to other Hospital where he expired---Complainant cautiously made improvements in his examination-in-chief by introducing the fact that accused persons asked them to hand over the amount that they had got from the bank and that accused snatched Rs.100,000/- from the deceased---Both the said facts although were not confronted during the course of cross-examination, however, a judicial notice could be taken as both the improvements, on the face of it, were dishonest and deliberate, therefore, same could not be ignored lightly---Circumstances established that the prosecution failed to prove its case against accused persons beyond reasonable shadow of doubt---Appeal against the conviction was allowed accordingly.

(d) Criminal trial---

----Dishonest improvements made by witness---Scope---If improvements are found to be deliberate and dishonest, same would cast doubt qua the veracity of the testimony of such witness of ocular account and no reliance can be placed on such testimony for conviction on a charge entailing death penalty for the simple reason that when a witness makes dishonest improvement while deposing before the court, he simply exposes himself to his own dishonesty that ipso facto is sufficient to discard his evidence by counting him a dishonest person.

Fida Hussain and another v. The State and another 2021 PCr.LJ 174 rel.

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

----Ss. 302(b), 396 & 412---Qatl-i-amd, dacoity with murder, dishonestly receiving property stolen in the commission of dacoity---Appreciation of evidence---Benefit of doubt--- No justification for the presence of witnesses at the time and place of occurrence---Chance witnesses---Accused were charged for committing murder of the brother of complainant and injury the complainant during dacoity---Record showed that complainant admittedly was posted as Patwari Irrigation Department, as such on the day of occurrence, he was supposed to be present at his office whereas in complaint, he was shown to be accompanying deceased and also witnessed the occurrence---Claim of complainant qua his presence at the spot made him a chance witness particularly when it had never been the stance of complainant in his written application that on the fateful date he in fact was on leave---Eye-witness should reasonably explain his presence at the spot and narration of incident as given by such witnesses should also inspire confidence---Both the said essential elements simply were lacking in the instant case inasmuch as neither presence of complainant had plausibly been explained and even narration of incident given by said witness hardly inspired confidence---Eye-witness, in his examination-in-chief attempted to support the stance of complainant but he skipped to state the improved stance of complainant that accused persons demanded them to hand over the cash---Said witness instead came up with the assertion in his examination-in-chief that accused tried to snatch amount from deceased and on his resistance, accused fired shot with his pistol---Said witness, who was nephew of complainant, admittedly was posted at Police Post which was at a distance of 2-½ kilometers from city, and he was supposed to be present at the place of his duty---No plausible explanation at all had been put forth by eye-witness justifying his presence at the spot during the hours when he was supposed to have been present at Police Post---Said witness too would conveniently be counted as a chance witness---Circumstances established that the prosecution failed to prove its case against accused persons beyond reasonable shadow of doubt---Appeal against the conviction was allowed accordingly.

(f) Criminal trial---

----Witness---Chance witness---Scope---Chance witness is a witness who claims that he was present at the crime spot at the fateful event notwithstanding, his presence there was per sheer chance as in the ordinary course of events he was supposed to be present at same other place---Testimony of chance witness in such context is ordinarily not accepted unless justifiable reasons are shown to establish his presence at the spot at relevant time---In normal course of events presumption under the law that would operate would be that such witness was not present at the crime spot.

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

----Ss. 302(b), 396 & 412---Qatl-i-amd, dacoity with murder, dishonestly receiving property stolen in the commission of dacoity---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Accused were charged for committing murder of the brother of complainant and injuring the complainant during dacoity---According to contents of FIR, on hearing the report of a fire shot as well as hue and cry made by complainant and his deceased brother, witness, since given up, and eye-witness were attracted to the spot along with many other person---Such narration given in the FIR suggested that the witnesses attracted to the spot after fire shot had been made could not be considered to have seen the assailants who made fire shot---Moreover, it had never been the case of complainant that two witnesses were already present in the street before their arrival---However, during cross-examination, complainant volunteered that said witnesses were already present in the street at the time of occurrence---Eye-witness in his cross-examination also stated that he was present in the street where occurrence took place---Such claim of complainant and eye-witness was in utter contradiction with the contents of FIR where witnesses were shown to have been attracted to the spot after hearing report of fire shot---In the scaled site plan which was prepared by draftsman on the pointing out of witnesses, distance between point No.1 where deceased sustained firearm injury at the hands of accused, from point No.3 wherefrom the fire shot was made by said accused, was three feet---However, during the course of cross-examination, complainant stated that he could not say with certainty that from which side fire was shot at deceased because they were grappling with each other---Said assertion of complainant implied that fire shot was made on the deceased when he was grappling with the accused---As for distance of deceased from the accused when fire shot landed on the abdomen of deceased, two versions in prosecution case emerged at trial---According to first version, fire shot was made by accused on the deceased from a distance of three feet as shown in scaled site plan whereas according to second version fire shot was made by accused on the deceased when they were grappling with each other, as stated by complainant---Both the versions were in clear contrast with each other considering the statement of complainant that he could not say with certainty that from which side fire was shot because they were grappling with each other---It could very conveniently be inferred that complainant did not see the fire shot made on the deceased---In both the eventualities, fire would be considered to have been made within a range of not more than three feet, as such, presence of burning around the entry wound is quite natural in view of principles of medical jurisprudence but strangely enough, there was no blackening around the wound as stated by Medical Officer during the course of his cross-examination---Circumstances established that the prosecution failed to prove its case against accused persons beyond reasonable shadow of doubt---Appeal against the conviction was allowed accordingly.

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

----Ss. 302(b), 396 & 412---Qatl-i-amd, dacoity with murder, dishonestly receiving property stolen in the commission of dacoity---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Contradictions---Accused were charged for committing murder of the brother of complainant and injuring the complainant during dacoity---Both the witnesses of ocular account had mentioned the time of occurrence as 12:00 noon but said deposition was not at all supported by the medical evidence---According to Medical Officer, injured, then deceased was brought at THQ Hospital at 11:15 am through his brother---Said deposition simply knocked the bottom out of whole prosecution story provided by the witnesses of ocular account as per whom occurrence took place at 12:00 noon---Had occurrence in this case taken place at 12:00 noon as claimed by the witnesses of ocular account, there could have been no question that injured was brought before Medical Officer at 11:15 a.m., i.e., 45 minutes prior to occurrence---Medical Officer was indeed an independent witness and the stance taken by him could not be doubted particularly when he was under oath---Even if a wrong fact was deposed by said witness, same could have been corrected and rectified either through re-examination or even getting said witness declared as hostile to that extent but nothing of that sort was done at trial---According to Investigating Officer, complainant appeared before him at Police Station and produced application and after lodging formal FIR, he prepared injury statement of injured, then deceased, and deputed a Police Constable for getting him medically examined---If injury statement was prepared after registration of FIR at 12:50 p.m., presence of injured at THQ Hospital even at 11:55 a.m. was beyond one's comprehension and reacted against the truthfulness of contents of complaint and even the evidence of witnesses of ocular account qua the time of occurrence---As per the contents of complaint, deceased also sustained injuries on various parts of his head, claimed to have been caused by accused persons with butts of pistol, however, no injury whatsoever on head of deceased was noticed by Investigating Officer in injury statement---Similarly, as per complaint, complainant also sustained pistol butt blows on various parts of his body but no Medico-Legal Certificate was obtained to show the injuries---Circumstances established that the prosecution failed to prove its case against accused persons beyond reasonable shadow of doubt---Appeal against the conviction was allowed accordingly.

Barkat Ali's case 2007 SCMR 1812 and Abdul Subhan's case PLD 1994 SC 178 rel.

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

----Ss. 302(b), 396 & 412---Qatl-i-amd, dacoity with murder, dishonestly receiving property stolen in the commission of dacoity---Appreciation of evidence---Benefit of doubt---Defective investigation---Accused were charged for committing murder of the brother of complainant and injuring the complainant during dacoity---Investigating Officer during the course of his cross-examination admitted that he did not mention the name of any of accused persons on injury statement, and recovery memos. regarding blood stained earth and empty of 30-bore---Said omission was reflective of the fact that till the preparation of said documents, the names of the assailants were not known to Investigating Officer and application and FIR was belatedly drafted after due deliberation and consultation---No record was either produced by the complainant or collected by the Investigating Officer during the course of investigation to establish the fact that on the date of occurrence amount to the tune of Rs. 100,000/- was actually drawn from the bank as mentioned in complaint---Complainant during the course of his cross-examination stated that he did not produce any receipt before the Investigating Officer about the withdrawal of money from the bank---Investigating Officer also admitted during the course of his cross-examination that he did not take any record from the concerned bank regarding withdrawal of the amount by the deceased---Investigating Officer did not record the statement of any bank official in that regard---Deceased was claimed to have been brought at THQ Hospital in injured condition but Investigating Officer never made any attempt to record statement of injured while preparing injury statement---Record showed that injured was further referred to another Hospital but Investigating Officer did not visit said Hospital for a period of around ten days in order to record statement of the injured till he succumbed to the injuries---Non-recording of statement of injured for about ten long days simply shattered the whole prosecution story given in complaint particularly where it had not been plausibly explained at trial that what refrained the Investigator from recording statement of injured---All the said facts clearly suggested that FIR in the instant case was lodged after due deliberation and consultation between complainant and police without recording statement of injured who was in his senses when he was firstly medically examined at THQ Hospital---Circumstances established that the prosecution failed to prove its case against accused persons beyond reasonable shadow of doubt---Appeal against the conviction was allowed accordingly.

(j) Criminal trial---

----Benefit of doubt---Principle---Conviction could only be based on evidence of unimpeachable character leading to certainty of the guilt of the accused---Even a single doubt arising in the prosecution case must be resolved in favour of the accused.

(k) Criminal trial---

----Benefit of doubt---Principle---Once doubt about the genuineness of prosecution story comes into the mind of the judge, proper and permissible course will be to acquit the accused by extending benefit of doubt.

Mst. Nazia Anwar v. The State 2018 SCMR 911 rel.

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

----Ss. 302(b), 396 & 412---Qatl-i-amd, dacoity with murder, dishonestly receiving property stolen in the commission of dacoity---Appreciation of evidence---Benefit of doubt---Recovery of robbed amount from the accused---Reliance---Accused were charged for committing murder of the brother of complainant and injuring the complainant during dacoity---In the present case, allegedly robbed amount was recovered from the accused---However, the recoveries so effected were clearly in contravention of S. 103, Cr.P.C., therefore no reliance could be place upon the same at all---Even otherwise, no specific denomination of looted amount was mentioned in complaint---Thus, recovery of currency notes from the accused persons hardly lent any support to the prosecution case---Where prosecution case was mainly based on the evidence of ocular account and the moment truthfulness and intrinsic worth of evidence of ocular account had come under the clouds of doubts and was disbelieved, no other evidence even that of a high degree and value would be sufficient for recording conviction for a crime entailing capital punishment---Circumstances established that the prosecution failed to prove its case against accused persons beyond reasonable shadow of doubt---Appeal against the conviction was allowed accordingly.

Zafar v. The State and others 2018 SCMR 326 rel.

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

----Ss. 302(b), 396 & 412---Qatl-i-amd, dacoity with murder, dishonestly receiving property stolen in the commission of dacoity---Appreciation of evidence---Benefit of doubt---Recovery of pistol from accused and empties from the spot---Inconsequential---Accused were charged for committing murder of the brother of complainant and injuring the complainant during dacoity---Record showed that an empty was shown to have been recovered from the spot during first spot inspection by Investigating Officer and during investigation pistols were also shown to have been recovered on the pointing out of accused persons---However, there was nothing on record to show that either the empty or the pistols were transmitted to the Forensic Science Agency for comparison in order to ascertain as to from which pistol the empty was fired and no report in that regard was available on the record---In absence of any such comparison report, recoveries of pistols shown against the accused persons were simply inconsequential---Circumstances established that the prosecution failed to prove its case against accused persons beyond reasonable shadow of doubt---Appeal against the conviction was allowed accordingly.

(n) Criminal trial---

----Heinousness of offence--- Mere heinousness of the offence, if not proved to the hilt, is not sufficient to provide a valid basis for conviction of the accused.

Najaf Ali Shah v. The State 2021 SCMR 736 rel.

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

----Ss. 302(b), 396 & 412---Qatl-i-amd, dacoity with murder, dishonestly receiving property stolen in the commission of dacoity---Appreciation of evidence---Benefit of doubt---Presence of witnesses at the spot doubtful---Accused were charged for committing murder of the brother of complainant and injuring the complainant during dacoity---Complainant along with witnesses claimed to have witnessed the occurrence and shifted victim in injured condition to hospital---In doing so, staining of their clothes with blood oozing from the wound of injured was very much natural---No evidence was available on the record to show that blood stained clothes of complainant and witnesses were taken into possession by the Investigating Officer---Had such clothes been taken into possession and dispatched to laboratory for grouping with the blood stained clothes of the deceased, the same would have lent strongest corroboration to the evidence of complainant and eye-witness showing their presence at the spot---Said omission struck at the roots of the case of prosecution---Circumstances established that the prosecution failed to prove its case against accused persons beyond reasonable shadow of doubt---Appeal against the conviction was allowed accordingly.

Azhar Abbas and another v. The State and others 2019 MLD 1808 and Abdul Jabbar v. The State 2019 SCMR 129 rel.

Sikandar Zulqarnain Saleem, for Appellant Yasir Pervaiz.

Muhammad Usman Riaz Gill for Appellant Mukhtar Ahmad.

Muhammad Rasib Khan For Appellant Ansar.

Yasir Javed Malik, Ch. Muhammad Ramzan and Naveed Ahmad Khawaja for the Complainant.

Rao Atif, DDPP for the State.

2023 Y L R 2207

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram and Muhammad Amjad Rafiq, JJ

MUHAMMAD TAYYAB and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 778, 492 and Murder Reference No. 55 of 2018, decided on 25th October, 2022.

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

----Ss. 302, 364, 148 & 149---Qatl-i-amd, kidnapping or abduction in order to murder, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Accused was charged that he along with others committed murder of the brother of the complainant after abducting him---According to prosecution, accused got recovered the dead body---Said discovery was not a secret information that could remain within the knowledge of police and the accused so as to evaluate it in the light of Art. 40 of Qanun-e-Shahadat Order, 1984---As per evidence an application was moved before Magistrate for disinterment of corpse, though such order was not brought into the evidence yet Medical Officer on firmed the fact that exhumation of dead body was done in the graveyard by a court order on an application moved by Investigating Officer---Said witness stated that on the lead and pointing out by the accused dead body was recovered from the graveyard in the presence of complainant, her husband, one other person and Medical Officer and that too by digging a grave by the accused himself---However, it was strange when application was already moved for exhumation and information in that respect was available with the police, doctor and complainant, question of exclusive knowledge did not arise so as to make evidence of recovery of dead body as admissible under Art. 40 of Qanun-e-Shahadat, 1984---Another strange factor was mentioned by the witnesses that for digging out the dead body no men were hired but that was done by accused himself---It was beyond comprehension that a man was laid into grave in a populated graveyard and nobody noticed nor it was reported that in what circumstances the deceased was brought there---No witnesses were available who could even depose burial of dead body by the accused or the co-accused---During evidence, it did not come to light that accused had ever pointed out a place where he committed the murder of deceased---There was no evidence of last seen in the case, nor any eye-witness to the act of murder and act of burial---Claim of prosecution that a certain cell phone number was in use of deceased and it remained on in certain intervals till the registration of FIR and thereafter too, was not supported with proof of ownership or report of a cellular company in that respect---Circumstances established that the prosecution had failed to prove the charge against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 364, 148 & 149---Qatl-i-amd, kidnapping or abduction in order to murder, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Accused was charged that he along with others committed murder of the brother of the complainant after abducting him---Record showed that during cross-examination Medical Officer responded that he prepared the postmortem report after one month and about cause of death he had not given any official opinion about cause of death of the deceased in postmortem report---Exaggerated version of Medical Officer deposing about cause of death by firearm before the Court could not be considered because accused was not aware of such opinion nor copy of it was provided to him, therefore, it was improper admission of a fact which lost sight of Trial Court---Medical Officer had further stated that he had not mentioned the time of death in the postmortem report---Circumstances established that the prosecution had failed to prove the charge against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 364, 148 & 149---Qatl-i-amd, kidnapping or abduction in order to murder, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Safe custody of the parcels for analysis doubtful---Accused was charged that he along with others committed murder of the brother of the complainant after abducting him---In the present case, three different reports of Forensic Science Agency were tendered in evidence---Forensic Science Agency report relating to parcel of pistol correctly mentioned the name of Police Constable as the man who deposited the said parcel---Investigating Officer though appeared twice before the Court as witness but did not depose about fact of depositing of said parcels yet claimed production of complainant before Forensic Science Agency---Safe transmission of parcels from Medical Officer to Forensic Science Agency was in serious doubt and chain was broken, therefore, Forensic Science Agency Reports were of no use to the prosecution---Circumstances established that the prosecution had failed to prove the charge against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 364, 148 & 149---Qatl-i-amd, kidnapping or abduction in order to murder, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Identification of dead body of the deceased by complainant--- Doubtful--- Accused was charged that he along with others committed murder of the brother of the complainant after abducting him---In the present case, the DNA report showing the identity of deceased as biologically full sibling of complainant lost its efficacy and could not be read in favour of prosecution---Prosecution had also put forward complainant and a witness with the claim that they had identified the dead body at the time of postmortem examination but both of them when in the witness box did not depose about said fact---Identification of last worn clothes along with dead body was also in doubt because related recovery memo showed interpolation and addition of fact of identification of clothes with different hand writing---In this case prosecution remained unsuccessful to prove the identity of skelton as dead body of deceased---So, when the basic fact in issue had not been proved, further material could not be used, was though same was also not worthy of appreciation, against the present accused--- Circumstances established that the prosecution had failed to prove the charge against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 364, 148 & 149---Qatl-i-amd, kidnapping or abduction in order to murder, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Contradictions in the statements of witnesses---Accused was charged that he along with others committed murder of the brother of the complainant after abducting him---Recovery of dead body on a certain date was also an issue in the case due to contradictory statements of complainant, witnesses, Medical Officer and Investigating Officer---According to Medical Officer and Investigating Officer dead body was recovered from the graveyard on 08.11.2014 whereas complainant during cross-examination deposed that accused was arrested on 21.10.2014---On 11.11.2014 complainant visited the place of occurrence and on the same day accused got recovered dead body of deceased and same was taken into possession by the police---Other witness deposed during cross-examination that dead body was recovered on 28.10.2014---Circumstances established that the prosecution had failed to prove the charge against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 364, 148 & 149---Qatl-i-amd, kidnapping or abduction in order to murder, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of hoe, shoes and pistol---Reliance---Accused was charged that he along with others committed murder of the brother of the complainant after abducting him---In the present case, the recovery of hoe (Kassi) and shoes were of no avail when they were not sent for testing to obtain any forensic clue with respect to use of such kassi for causing any injury or excavation of earth for burial of dead body---Similarly, shoes were also not sent for testing nor any expert examined such shoes to know about its size and whether it fit in the feet of deceased---Pistol though was recovered but its recovery was doubtful from the place because police had already visited that place prior to said recovery---Even otherwise only a functionality test report of such pistol was available---No bullet casings were collected by the police so as to obtain any evidence of its matching with alleged pistol---Though Medical Officer had observed injuries by firearm weapon but it was not discernable from the record that it was caused with pistol shots---More so, neither the time nor cause of death was determined by the Medical Officer as admitted by him during cross-examination, therefore, recovery of pistol did not add any quality to prosecution case---Circumstances established that the prosecution had failed to prove the charge against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 364, 148 & 149---Qatl-i-amd, kidnapping or abduction in order to murder, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Motive not proved---Accused was charged that he along with others committed murder of the brother of the complainant after abducting him---Motive put forward by the prosecution was without support of any evidence---From the accused's side one lady appeared as defence witness and stated that matrimonial grudges and registration of an FIR was the reason for false involvement of her husband and his brother as the present accused in the present case---On her statement, Police opted to discharge one of the accused from the case but present accused was falsely retained and shown involved only to appease the complainant party---From the said statement, it was clear that prosecution case theory on the basis of alleged motive was not made out and prosecution had failed badly to prove such aspect of the case---Circumstances established that the prosecution had failed to prove the charge against the accused beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Ch. Muhammad Saeed Machra for Appellants.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

Complainant in person.

2023 Y L R 2233

[Lahore]

Before Anwaar Hussain, J

TARIQ JAVED---Petitioner

Versus

RUKHSANA BIBI and others---Respondents

Writ Petition No. 17666 of 2022, heard on 22nd May, 2023.

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

----Ss. 5, Sched. & 17-A---Suit for recovery of maintenance allowance---Decree, not assailed against all decree-holders---Effect---Record of the appeal having been preferred by the petitioner/ defendant revealed that he challenged the order and decree passed by the Family Court without arraying the minor as respondent therein---Said act of the petitioner meant that he had admitted the findings of the Family Court to the extent of relief given to the minor, so he could not take a somersault, before the High Court, on the ground that he had challenged the decree as a whole---No illegality or infirmity was found in the impugned orders and decrees passed by both the Courts below---Constitutional petition was dismissed, in circumstances.

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

----S. 5, Sched.---Suit for recovery of maintenance allowance of minor---Quantum---Financial status of father---Poverty---Contention of the defendant was that he, being a driver, was a poor person having no stable source of income---Validity---Mere poverty was no ground for interference in the order passed by the Family Court passing decree far maintenance allowance of the minor to the tune of Rs. 10,000/- per month, which amount was neither exorbitant nor unreasonable considering the inflation and cost of living---No illegality or infirmity had been found in the impugned orders and decrees passed by both the Courts below---Constitutional petition was dismissed, in circumstances.

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

----Ss 5, Sched. & 17-A---Suit for recovery of maintenance allowance---Right of defence---Striking off---Family Court while fixing interim maintenance allowance, ordered the petitioner/ defendant to pay, on next date of hearing, the arrears of interim maintenance allowance counting from the date of institution of the suit---Petitioner/defendant did not comply with the said directions---Later, the Family Court struck off his right of defence on the application of respondents/plaintiffs---Contention of the petitioner/defendant was that only one opportunity was granted to him to clear the arrears of the maintenance allowance while fixing the interim maintenance allowance---Validity---It was not vested right of the petitioner to claim multiple opportunities for compliance of the order/directions and he was obliged to adhere to the directions of the Trial court regarding payment of the maintenance allowance in order to clear the arrears---Even otherwise, the record revealed that after the said directions, the case was fixed on multiple dates spanning almost a year and then impugned order and decree was passed by the Family Court, thus the contention of the petitioner was misconceived---Act of non-compliance of order of the Trial Court disentitled the petitioner from any discretionary relief from the High Court---No illegality or infirmity had been found in the impugned orders and decrees passed by both the Courts below---Constitutional petition was dismissed, in circumstances.

Sardar Muhammad Ramzan for Petitioner.

Mian Tariq Hussain for Respondents Nos. 1 and 2.

2023 Y L R 2278

[Lahore]

Before Ch. Muhammad Iqbal, J

Mst. AKBARI BEGUM and others---Petitioners

Versus

MEMBER BOARD OF REVENUE, PUNJAB, LAHORE and others---Respondents

Writ Petition No. 7856 of 2013, heard on 23rd June, 2022.

Punjab Land Revenue Act (XVII of 1967)---

----Ss. 42 & 47---Constitution of Pakistan, Art. 199---Constitutional petition---Mutation of sale, setting aside of---Pendency of civil litigation---Petitioners assailed mutation on the basis of oral sale, which mutation was cancelled but Board of Revenue restored the same on the plea of pendency of civil litigation--- Validity--- In inquiry proceedings, no evidence was brought on record that any consideration was paid---Petitioners denied recording of any oral sale mutation---Respondents were brother who were trying to usurp inherited property of petitioners (sisters)---Entry of sale in alleged mutation was violation of S. 42 of Punjab Land Revenue Act, 1967---For alleged sale mutation dated 21-08-2000, mandatory fee under Ss. 47(7) & 42(10) of Punjab Land Revenue Act, 1967, was deposited in year 2009 after about nine years---Sanction of mutation on 30-06-2009 was violation of Ss.42(7) & (10) of Punjab Land Revenue Act, 1967---Board of Revenue illegally observed in its order that civil litigation was pending for which reason the mutation could not have been sanctioned---High Court set aside the order passed by Board of Revenue as the same was without jurisdiction and in violation of S. 42(10) of Punjab Land Revenue Act, 1967 and restored those of Revenue Officer and Commissioner---Constitutional petition was allowed, in circumstances.

Ghulam Sarwar (deceased) through LRs and others v. Ghulam Sakina 2019 SCMR 567 rel.

Moeen Ahmad for Petitioners.

Shahzad Ismail, A.A.G. for Respondent No.1.

Zafar Iqbal Chohan for Respondents Nos. 3 and 4/legal heirs.

Ahmad Khan Gondal for Respondents Nos. 2 and 5 (I to iv, vi to ix).

2023 Y L R 2304

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

MUHAMMAD ARSHAD---Petitioner

Versus

MUHAMMAD RAFIQUE (Deceased) through L.Rs. and another---Respondents

Civil Revision No. 341-D of 2017, decided on 22nd December, 2022.

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

----Ss. 42 & 54---Registration Act (XVI of 1908), S.17---Qanun-e-Shahadat (10 of 1984), Art. 129, illustration (e)---Civil Procedure Code (V of 1908), O.I, R.10 & O.VI, R.4---Suit for declaration and injunction---Fraud---Proof---Absence of details of fraud---Necessary parties, non-impleading of---Registered document---Presumption--- Respondent / plaintiff assailed Tamleek deed allegedly issued in favour of petitioners/defendants who were his sons---Respondent/plaintiff raised the plea of fraud---Trial Court and lower Appellate Court concurrently decreed the suit and appeal in favour of respondent / plaintiff---Validity---Respondent/plaintiff leveled allegation of fraud without giving its details and particulars---In support of his allegations respondent/plaintiff recorded only his self-serving statement, and thus he failed to discharge his initial onus---Respondent / plaintiff challenged authenticity / sanctity for registered document (Tamleek Deed) by leveling allegation of fraud and misrepresentation that the same was procured by petitioner /defendants with the connivance of Sub-Registrar---When allegation of fraud and misrepresentation was level against Sub-Registrar, in such eventuality Province of Punjab and Sub-Registrar who registered the deed, were necessary parties---Neither the Province of Punjab nor the Sub-Registrar were arranged as defendants in the suit which was defective one and decree could not be passed against a person who was not a party to the lis before the Court---Respondent/plaintiff challenged registered Tamleek deed by instituting suit but presumption of truth and sanctity was attached to the registered document---Strong piece of evidence was required to cast aspiration on genuineness of such registered document---Bare words could not dislodge the presumption---Although such presumption was rebuttable but for that a party must produce evidence on the basis of standard set forth by the Supreme Court---High Court set aside concurrent judgments and decrees passed by two Courts below and remanded the matter to Trial Court for decision afresh---Revision was allowed accordingly.

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

----Arts. 59 & 84---Thumb impressions---Examination---Expert opinion---Scope---In case of any dispute regarding genuineness of signatures, thumb impressions, Arts. 59 & 84 of Qanun-e-Shahadat, 1984 are enabling provisions of law---Refusal to get comparison of thumb impressions and signatures amounts to negation of justice---Report of fingerprint and handwriting experts are always open to objection by either side.

Abdul Rashid Sheikh for Petitioner.

Ch. Iftikhar Ahmad Warraich for Respondents.

2023 Y L R 2364

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

NISHTAR HOSPITAL MULTAN through Medical Superintendent---Appellant

Versus

Messrs LINDE PAKISTAN LTD. and others---Respondents

Civil Revision No. 1210 of 2022, heard on 21st December, 2022.

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

----O. XLI, R. 27---Additional evidence at appellate sage---Scope---Order XLI, R. 27, C.P.C., does not envisage filling up the lucuna left by a party in evidence before Trial Court---Additional evidence could not be received to fill-up lacuna or provide for deficiency in the case of a party---It is not meant to cater the needs of a particular party but is available for exercise by the appellate Court to appropriate cases where need for taking additional evidence appears essential to the Court for just decision of the case---It envisages certain circumstances when additional evidence can be adduced---Scope of O. XLI, R. 27, C.P.C., is limited as it contemplates very few circumstances or conditions in which the appellate Court may allow a party to the appeal to produce additional documentary evidence---Said provision does not give unfettered discretion to the Court to allow application for additional evidence---There must be some reasons for allowing said application---Discretion of Court should not be exercised in favour of a person who remained indolent for years and such person should suffer consequences of his failure.

Bashir Ahmad v. Ahmad-ul-Haq Siddique 1985 SCMR 1232; Shtamand and others v. Zahir Shah and others 2005 SCMR 348; Syed Muhammad Hassan Shah and others v. Mst. Binat-e-Fatima and another PLD 2008 SC 564 and Muhammad Siddique v. Gul Nawaz and others 2021 SCMR 1480 rel.

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

----O. XLI, R. 27---Additional evidence, protection of an appellate sage---Scope---Respondent/ plaintiff instituted a suit for recovery of certain amount along with mark-up---Suit was contested by the petitioner/ defendant---Trial Court, after recording evidence of the parties, pro and contra, decreed the suit---Feeling aggrieved petitioner filed appeal and thereafter moved an application under O. XLI, R. 27, C.P.C., for production of additional evidence---Appellant Court dismissed the said application---Held, that from perusal of record it appeared that the petitioner intended to produce 39 documents, (the detail of which had been given in the application)---Respondent/ plaintiff instituted the suit almost 10 years ago---Contention of the petitioner was that inadvertently these documents could not be produced before learned trial Court at the relevant time---Admittedly, the case of the petitioner did not fall under O. XLI, R. 27, C.P.C., because there was no material on record which suggested that the additional evidence had been available but could not be produced for reasons beyond the control of petitioner---Petitioner failed to explain that why any step to produce evidence in question was not taken for so many years---In view of lack of vigilance on the part of the petitioner, it was not a fit case for exercise of powers by the Court in his favour under O. XLI, R. 27, C.P.C.---Said provision does not give unfettered discretion to the Court to allow application for additional evidence---There must be some reasons for allowing said application---Petitioner failed to satisfy the Court with regard to non-production of said documents at appropriate time---No illegality, irregularity and mis-reading or non-reading of record was found on the part of lower appellate Court while passing the impugned order---Civil revision was dismissed.

Muhammad Adam Imam and Muhammad Imran Shakir for Petitioner.

Raja Akbar Ali Mehboob for Respondent No.1.

2023 Y L R 2412

[Lahore]

Before Muhammad Tariq Nadeem, J

RASHID AHMED and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 185 and Criminal Revision No. 242 of 2015, heard on 11th October, 2022.

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

----S. 496-B(2)--- Criminal Procedure Code (V of 1898), S. 203-C---Fornication---Appreciation of evidence---Benefit of doubt---DNA test---Consent, proof of---Two accused were sent to face trial for abducing and raping complainant/prosecutrix---Trial Court acquitted one accused while the other was convicted for committing fornication and was sentenced to imprisonment for five years---Validity---For convicting a person in the offence of fornication, complaint in terms of S. 203-C, Cr.P.C., was mandatory---Male alone could not be convicted in the offence of fornication and consenting female could not be believed as a witness against male accused---On external examination of complainant/prosecutrix, lady doctor did not find any mark of violence on her body---Ocular account was not supported by forensic evidence as vaginal swabs of complainant/prosecutrix were not found matched with blood sample of accused---Matching of semen stains taken from bed sheet from place of occurrence, which was drawing room of accused, with his blood sample was not sufficient proof to hold that the accused had committed sexual intercourse with the complainant/ prosecutrix---Prosecution case was full of improbabilities, legal and factual infirmities of fatal nature and was pregnant with bristling doubts of grave nature---Prosecution failed to prove its case against accused beyond reasonable doubt---High Court set aside conviction and sentence recorded by Trial Court and acquitted accused of the charge by extending benefit of doubt---Appeal was allowed accordingly.

Muhammad Azad v. Ahmad Ali and 2 others PLD 2003 SC 14 and Mst. Shamim and 2 others v. The State and another 2003 SCMR 1466 ref.

(b) Criminal trial---

----Benefit of doubt---Effect---Responsi-bility to prove a case beyond any shadow of reasonable doubt squarely lies with prosecution---If prosecution fails to successfully discharge its responsibility, the only result can be extension of benefit of doubt to accused person---Multiple doubts are not required, even a single circumstance creating doubt in a prudent mind is sufficient to extend benefit of doubt---In case of doubt, benefit thereof must accrue in favour of accused as matter of right and not of grace.

Tajamal Hussain Shah v. The State and another 2022 SCMR 1567 and Kashif Ali alias Kalu v. The State and another 2022 SCMR 1515 rel.

Mudassar Naveed Chattha, Mosa Hayat Tarar and Muhammad Waqas for Appellants.

Sultan Asghar Chattha, D.P.G. and Moeen Ali, D.P.G. for the State.

Muhammad Ahsan Bhoon and Aftab Islam Kalasan for the Complainant.

2023 Y L R 2441

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

Mst. ILYAS AKHTAR---Appellant

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Revision No. 251-D of 2017, decided on 13th December, 2022.

(a) Administration of justice---

----Technicalities---Scope---Justice cannot be sacrificed on altar of a technicality which does not go to the root of the cause---Unjust and wrong decision which is also against substantive law of the country has to be avoided by Court.

Syed Phul Shah v. Muhammad Hussin and 10 others PLD 1991 SC 1051; Ahmad Ashraf v. University of the Punjab 1988 SCMR 1782; Mst. Fazal Jan v. Roshan Din and 2 others PLD 1992 SC 811; Zar Wali Shah v. Yousaf Ali Shah and 9 others 1992 SCMR 1778; Muhammad Tariq and others v. Mst. Shamsa Tanveer and others PLD 2011 SC 151 and Commissioner Multan Division, Multan and others v. Muhammad Hussain and others 2015 SCMR 58 rel.

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

----Ss. 42 & 54---West Pakistan Land Revenue Act (XVII of 1967), S. 45---Civil Procedure Code (V of 1908), O. XLI, R.25---Suit for declaration and injunction---Mutation, assailing of---Procedure--- Expression, "sufficient cause"---Scope---Additional evidence, producing of---Principle---Respondents/ plaintiffs assailed mutations transferring land in favour of petitioner/defendant---Suit was decreed by Trial Court in favour of respondents/plaintiffs---During pendency of appeal, Lower Appellate Court declined to allow petitioner/ defendant to adduce additional evidence in her support---Validity---Where a party challenged vires of a mutation in revenue record, it became essential for the other party who was deriving any title from such transaction to prove valid execution of mutation in question---Entries made in record of rights had strong presumption in favour of the party who derived title from such entries but the presumption could be rebutted, if evidence was led to that effect and it was essential for the party relying on such entries to bring them on record---When vires of a mutation was direct in issue, Court could not pronounce a just judgment without looking at the documents which were in dispute and without recording statements of those who wished to prove or disprove documents in question---Such factor was sufficient to bring the case within the expression "sufficient cause" which appeared in O. XLI, R. 27, C.P.C.---When persons who allegedly put their thumb impressions and signatures on the mutations denied doing the same then Lower Appellate Court should have permitted opinion of Finger Prints Expert as additional evidence but by failing to do so it had failed to exercise jurisdiction vested in it---High Court in exercise of revisional jurisdiction set aside order passed by Lower Appellate Court and permitted petitioner/plaintiff to produce additional evidence---Revision was allowed, in circumstances.

Asadullah Khan v. Abdul Karim 2001 AC 290; Defence Science and Technology Organization through Director General v. Arif Engineering International through Sole Proprietor 2021 CLC 103; Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213; Muhammad Idrees and others v. Muhammad Pervaiz and others 2010 SCMR 5; H. M. Saya & Co v. Wazir Ali Industries Limited PLD 1969 SC 65; Bisvil Spinners (Pvt.) Ltd. v. Pakistan through Secretary Ministry of Finance, Islamabad, and others PLD 1992 SC 96; Syed Sharif ul Hassan through L.Rs. v. Hafiz Muhammad Amin and others 2012 SCMR 1258; Muhammad Azam v. Muhamamd Iqbal and others PLD 1984 SC 95 and Khurshid Ali and 6 others v. Shah Nazar PLD 1992 SC 822 rel.

Malik Javed Akhtar Wains for Petitioner.

Maher Muhammad Imtiaz Hussain Mirali, Assistant Advocate General Punjab for Respondent No.1.

Ch. Ghulam Din Aslam for Respondents Nos. 2 to 7.

2023 Y L R 2471

[Lahore]

Before Aalia Neelum and Anwaarul Haq Pannun, JJ

RIAZ---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 43590-J, P.S.L.A. No. 26329 and Murder Reference No. 74 of 2019, decided on 22nd December, 2022.

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

----Ss. 302(b), 109, 114, 148 & 149---Qatl-i-amd, abetment, abettor present when offence committed, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---First Informtion Report lodged with promptitude---Accused was charged for committing murder of the brother of the deceased by firing---Record showed that the incident occurred at about 08.45 pm on 04.03.2016, wherein accused shot down brother of complainant with his rifle---Complainant arranged a vehicle and took the victim for medical treatment to a hospital, but on the way to the hospital, he succumbed to the injury, and they brought back the dead body of deceased at the place of occurrence---Oral complaint of the complainant was scribed by SI at 09.45 p.m. on 04.03.2016 at the place of occurrence against the accused named therein---First Informtion Report was chalked out at 10.15 p.m. by Head Constable---Distance between the place of occurrence and the Police Station was 22 kilometers, showing that it was promptly lodged---Circumstances estab-lished that the prosecution had proved its case against the accused, however, due to some mitigating circumstances, the death sentence was converted into imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b), 109, 114, 148 & 149---Qatl-i-amd, abetment, abettor present when offence committed, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence--- Ocular account supported by medical evidence---Accused was charged for committing murder of the brother of the deceased by firing---Eye-witnesses account of the prosecution, which had been adduced by the examination of the complainant, and an eye-witness, was quite consistent---Both the eye-witnesses had seen the occurrence---Eye-witness account of complainant and an eye-witness was corroborated by the medical examination of deceased---Medical Officer conducted the post-mortem examination of the dead body of deceased on 05.03.2016 at 03:30 a.m. and opined that the time elapsed between injuries and death was about 10 to 20 minutes, whereas between death and post-mortem was about 6 to 8 hours---Testimony of said Medical Officer and the postmortem report fully corroborated the ocular account that the injury was received by the deceased with a firearm at the time of occurrence---Both eye-witnesses had stood firm in their cross-examination about the identity of the accused, and the time, place, and manner of assault---Moreover, there was hardly any discrepancy in the statements and the narration of the facts by eye-witnesses about the incident---Site plan also fully corroborated the ocular account---Since the parties were known to each other, there was no question of any misidentification by the eye-witnesses---Not only the post-mortem report supported the statements of the said two witnesses, but FIR also had been lodged promptly, erasing any doubt of manipulation in it---Eye-witnesses were natural witnesses and no reason was found to disbelieve the incident as they narrated--- Circumstances established that the prosecution had proved its case against the accused, however, due to some mitigating circumstances, the death sentence was converted into imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b), 109, 114, 148 & 149---Qatl-i-amd, abetment, abettor present when offence committed, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Post mortem upon the dead body of the deceased conducted promptly--- Accused was charged for committing murder of the brother of the deceased by firing---Medical Officer, who conducted the postmortem examination, led to the conclusion that the deceased died a homicidal death---Tenor of cross-examination of the witnesses also did not dispute that the documents were belatedly handed over to the said Medical Officer---Deceased died a homicidal death---Thus, there was no delay in conducting post-mortem examination of the dead body of deceased---Circumstances established that the prosecution had proved its case against the accused, however, due to some mitigating circumstances, the death sentence was converted into imprisonment for life---Appeal was dismissed with said modification in sentence.

(d) Criminal trial---

----Defence plea---Burden of proof---Scope---In a case where a specific plea is raised by the accused, he has to prove the same.

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

----Ss. 302(b), 109, 114, 148 & 149---Qatl-i-amd, abetment, abettor present when offence committed, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Related and interested witnesses, evidence of---Relieance--- Accused was charged for committing murder of the brother of the deceased by firing---Allegedly, the eye-witnesses were relatives of the deceased---Testimony of eye-witnesses, who were close relatives of the deceased, could not be discarded on the plea of relationship---In the present case, though, the complainant and eye-witness were brothers of the deceased, they had stated their presence at the place of the incident---Medical evidence on record corroborated the statement of said eye-witnesses---Said witnesses had sufficiently explained their presence at the place of the occurrence---Thus, there was no reason to disbelieve them simply because they were relatives of the deceased---Circumstances established that the prosecution had proved its case against the accused, however, due to some mitigating circumstances, the death sentence was converted into imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b), 109, 114, 148 & 149---Qatl-i-amd, abetment, abettor present when offence committed, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Motive proved---Accused was charged for committing murder of the brother of the deceased by firing---Motive behind the occurrence was that daughter of the close relative of the complainant was abducted by accused and deceased demanded her back from accused, and due to said grudge, occurrence took place---Defence had not denied that accused abducted daughter of close relative of complainant--- Instead, it was the plea of the accused that compromise was effected between him and the father of abductee---On the following day of the occurrence, Nikah of the niece of accused was going to be performed with the brother of said abductee, but the accused failed to produce father of abductee in his defence---Accused had not stated that his niece's marriage took place with the brother of abductee---Accused admitted that the dispute between him and father of abductee remained on the abduction of said abductee, but fact remained that the cross-examination conducted by the defence revealed that the defence indirectly admitted the motive part of the evidence---Circumstances established that the prosecution had proved its case against the accused, however, due to some mitigating circumstances, the death sentence was converted into imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b), 109, 114, 148 & 149---Qatl-i-amd, abetment, abettor present when offence committed, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Accused was charged for committing murder of the brother of the deceased by firing---Record showed that neither number of the recovered motorcycle was mentioned in FIR or the private complaint, nor ownership of the said motorcycle was brought on the record---No crime empty was recovered from the place of the occurrence, so recovery of rifle was of no consequence---As the accused had been convicted and sentenced to death for the murder of deceased, in such an eventuality, the same could be considered a mitigating circumstance---Thus, death sentence awarded to the accused was quite harsh---Accused was entitled to the benefit of the doubt as an extenuating circumstance while deciding his question of sentence---Hence, the death sentence was converted into imprisonment for life---Appeal was dismissed with modification in sentence.

Dilawar Hussain v. The State 2013 SCMR 1582 rel.

Shahid Azeem and Maqsood Ahmad for Appellant.

Miss Maida Sobia, Deputy Prosecutor General for the State.

Khurram Ahsan Malik, Naveed Ahmad Khawaja, Usman Zafar, and Amna Ajmal for the Complainant.

2023 Y L R 2497

[Lahore (Rawalpindi Bench)]

Before Asjad Javaid Ghural and Ch. Abdul Aziz, JJ

SHEER MUHAMMAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 1369-B of 2023, decided on 10th July, 2023.

Criminal Procedure Code (V of 1898)---

----S. 497---Anti-Terrorism Act (XXVII of 1997), S. 7---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Terrorism, possession of explosive substances, arms and ammunition---Bail, grant of---Allegation of being a member of a proscribed organization---Absence of evidence---Juvenile accused---Allegation against the petitioner was that he, being member of proscribed organization, possessed explosive substance weighing 470 grams along with four feet safety fuse wire and four detonators at the time of his arrest---Record revealed that no evidence was collected against the petitioner/accused during investigation showing that he had been indulging in any anti-state activities or he was a member of any proscribed organization---Petitioner had no antecedent of such like activities and even no other criminal case had so far been registered against him---Petitioner was behind the bars for more than three months whereas report under S. 173 of Criminal Procedure Code, 1898, had not been submitted in the Trial Court---There was no likelihood of early conclusion of the trial---Documents (Form-B and Matriculation Certificate) showed that the petitioner was below seventeen years of age at the time of alleged incident, therefore, he being juvenile and teenager was entitled for concession of bail---Bail was allowed to the petitioner, in circumstances.

Arshad Hussain Yousafzai for Petitioner.

2023 Y L R 2503

[Lahore (Rawalpindi Bench)]

Before Sadaqat Ali Khan and Ch. Abdul Aziz, JJ

HAFEEZ AHMED and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 113, 190, Criminal Revision No. 63 and Murder Reference No. 34 of 2020, heard on 22nd November, 2022.

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

----Ss. 302(b), 337-A(i), 337-A(ii), 337-F(vi), 337-L(2), 109, 148 & 149---Qatl-i-amd, shajjah-i-khafifah, shajjah-i-mudihah, ghayr-jaifah-munaqqillah, hurt, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Delay in lodging FIR---Effect---Accused were charged for committing murder of the son of complainant by firing---Record showed that the complaint was prepared at 07.00 pm whereas, the autopsy was conducted 45 minutes prior to that at 06.15 p.m.---Eye-witness candidly conceded that police post was situated in close proximity of the crime scene at 01 kilometer but still the incident was not reported to the officials posted therein---Cumulatively, all the facts led to the conclusion that indeed the FIR was registered late in the night and the intervening time was used for procuring the attendance of some suitable witnesses and for sketching a story to implicate maximum members from the family of accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

Abdul Ghafoor v. The State 2022 SCMR 1527 rel.

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

----Ss. 302(b), 337-A(i), 337-A(ii), 337-F(vi), 337-L(2), 109, 148 & 149---Qatl-i-amd, shajjah-i-khafifah, shajjah-i-mudihah, ghayr - jaifah - munaqqillah, hurt, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Wider net, casting of---Accused were charged for committing murder of the son of complainant by firing---Record showed that as many as ten persons were indicted in the case with the allegation of having actively participated in the crime---All the accused arrayed in the case were entrenched in kinship with each other and from that factor it could be gathered that the case in hand was of wider net---Such cases from their very genesis call for discreet scanning of the prosecution case mainly for the reason that unfortunately, it has become trend of criminal litigation to implicate as many persons from the family of accused as possible in a case of homicide, mainly to exert pressure upon others so as to desist them from pursuing the case of the actual delinquent---On occasions, the actual murder incident remains un-witnessed and a wider net is spread to grill in the case members hailing from the family of adversaries on account of doubt by planting false witnesses---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

Muhammad Zaman v. The State 2014 SCMR 749 rel.

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

----Ss. 302(b), 337-A(i), 337-A(ii), 337-F(vi), 337-L(2), 109, 148 & 149---Qatl-i-amd, shajjah-i-khafifah, shajjah-i-mudihah, ghayr-jaifah-munaqqillah, hurt, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Presence of eye-witnesses at spot at time of occurrence not established---Chance witnesses---Accused were charged for committing murder of the son of complainant by firing---Record showed that the ocular account was furnished during trial by four witnesses---Though Mr. "S" eye-witness deposed during trial to have abode in the vicinity of crime scene but the falsity of such stance was badly exposed during cross-examination---Said witness candidly conceded that he along with his sons was registered voter of Union Council of some other place---However, it was proved during cross-examination of complainant that the claim of Mr. "S" regarding his abode in village vicinity of crime was nothing but a blatant lie---Indeed, it emerged from the cross-examination of complainant that during the relevant time Mr. "S" was running a small grocery shop in a locality situated at a distance of 40/45 kms. from the place of occurrence---Acclaimed presence of complainant at the spot was also not free from doubts--- Admittedly, complainant was resident of a village situated at a distance of 60/65 kms. from the eventful place---Defence placed on record the ownership of the mobile phone of complainant, its Call Data Record and Site Location/Grid Report---From the perusal of the said documents, it transpired that at the time when the homicide incident occurred, the complainant was present in the area of Grid installed in other Tehsil and he reached at place of occurrence at about 7:25 p.m.---Data so tendered in evidence by defence witness since emanated from automated information system and collected through modern devices and techniques, proved beyond any shred of doubt that complainant reached the vicinity of crime after about 03-hours of the incident, thus his claim of having seen the incident was nothing but a brazen lie---Thus, it had been concluded that both of them were chance witnesses and besides that they failed even to prove their presence at the spot---While pondering upon the testimony of other two eye-witnesses, it was observed that they entered the dock with the stance of having received injuries during the same incident---Statement of eye-witness Mr. "S" showed that one of the injured witnesses used to ply taxi in another city---Not only that, in MLC, the address of said injured was found mentioned, as a neighbourhood other than the place where murder incident took place---Deposition of said injured witness was in eternal silence regarding the reason which prompted him to reach the vicinity of crime and it made him a chance witness---Record showed that the depositions of injured witnesses stood belied from medical evidence to the extent of main injury endured by deceased as well as in reference to the role ascribed to acquitted accused, their medical examination was proved to have been carried out two days after the incident---One out of them was also a chance witness, thus, it would be a fallacious approach to uphold the conviction of accused upon their depositions---Intrinsic worth of the testimony of a witness rested upon his credibility, which, by no stretch, was divisible in nature---If an eye-witness of a murder incident was found to have deposed falsely regarding material aspects, it was better to discard his evidence---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

Saifal v. The State 2013 PCr.LJ 1082; Ali Raza alias Peeter and

others v. The State and others 2019 SCMR 1982; Naveed Asghar and 2 others v. The State PLD 2021 SC 600; Mst. Mir Zalai v. Ghazi Khan and others 2020 SCMR 319; Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652; Amin Ali v. The State 2011 SCMR 323; Nazir Ahmad v. Muhammad Iqbal and another 2011 SCMR 527 and Imtiaz alias Taj v. The State and others 2018 SCMR 344 rel.

Fakhar Hayat, Advocate with Waleed Hussain for Appellant No.2.

Ms. Memoona Ehsan-ul-Haq, DDPP with Muhammad Israr SI for the State.

Basharat Ullah Khan for the Complainant.

2023 Y L R 2525

[Lahore]

Before Farooq Haider, J

ABDUL RAUF---Appellant

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No. 32503 of 2023, decided on 22nd May, 2023.

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

----S. 3---Constitution of Pakistan, Art. 13--- Power to arrest and detain suspected persons---Protection against double punishment and self-incrimination---Detention based on apprehension---Petitioner sought an order directing the Provincial Government to release his brothers---Before passing a detention order of a person under S. 3 of the Punjab Maintenance of Public Order Ordinance, 1960, the competent authority must have reasons to believe that the said person, within its territorial jurisdiction, has acted, is acting, or is about to act in a manner prejudicial to public safety or the maintenance of public order---However, perusal of the available record revealed that the allegations against the detainees were general in nature and no solid or cogent evidence/material was produced before the Deputy Commissioner at the time of passing the impugned orders---Except for the recommendations of the District Police Officer, there was no material available against the detainees to establish that they were acting or about to act in any manner prejudicial to public safety or the maintenance of public order---Even the report of the District Police Officer did not reflect any material to invoke subsection (1) of S. 3 of the Punjab Maintenance of Public Order Ordinance, 1960, except for apprehensions---Apprehensions without any valid reasons and not supported by any cogent material cannot be allowed to be the basis for curtailing the rights, liberty or freedom of any citizen, which is guaranteed by the Constitution---As far as the registration of the FIR against the detainees was concerned, suffice to say that the allegations levelled in the said case were first to be established during the investigation and then had to be proved during trial---Detainees would face proceedings in the same separately as per law, but in these circumstances, it could not be per se made the basis for the issuance of the impugned detention orders, and in this regard, Article 13(a) of the Constitution could be advantageously referred---Detenues were ordered to be released and the Constitutional petition was accepted, in circumstances.

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

----S. 3---Constitution of Pakistan, Art. 199---Constitutional petition---Power to arrest or detain suspected persons---Habeas corpus--- Maintainability---Scope---Where the petitioner filed a constitutional petition seeking release of his brothers detained on the strength of an order under S. 3 of the Punjab Maintenance of Public Order Ordinance, 1960, the State objected to the maintainability of the petition due to non-filing of representation by the detenues before the Provincial Government---Held; right to file petition of instant nature i.e. habeas corpus is remedy provided by the Constitution in all matters of illegal confinement as one of fundamental rights---If arrest of a person for the purpose of "Preventive Detention" cannot be justified in the eyes of law, then there is no reason why said person should not invoke jurisdiction of High Court for his immediate release---Objection was turned down.

Muhammad Irshad v. Government of the Punjab and others 2020 PCr.LJ 206 rel.

(c) Maxim---

----A communi observantia non est recedendum---Scope---When law requires a thing to be done in a particular manner, it should be done in that manner otherwise same would be deemed as illegal.

Muhammad Zafar Iqbal v. Sadozai Khan and 2 others 2021 YLR 1206 and Maqsood Yameen v. R.P.O. Multan and others 2015 PCr.LJ 923 ref.

Zulfiqar Ali Dhudhi for Petitioner.

2023 Y L R 2538

[Lahore (Bahawalpur Bench)]

Before Ali Zia Bajwa. J

ALLAH DITTA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 298-J of 2017, heard on 24th January, 2022.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention--- Appreciation of evidence---Last seen evidence---Doubtful---Accused was charged for committing murder of the sister of complainant and her daughter---According to statement of eye-witness, he had seen the accused throwing a girl in canal (allegedly nice of complainant) on 30.03.2016, when he was going with Mr. "A", son of nephew of deceased and cousin of minor deceased---Astonishingly, such episode of throwing a girl in canal was not mentioned in the crime report because it was an admitted fact that Mr. "A" lived with his father---Statement of nephew of deceased showed that Mr. "A" used to live with him at the time of occurrence and worked as daily wager with the eye-witness---Surprisingly, father of Mr. "A" did not recognize his cousin, allegedly thrown in the canal by his uncle/ accused---However, it became highly doubtful that despite seeing accused throwing deceased in canal, he did not stop and try to rescue her---Prosecution had no justification that why such fact was not mentioned in the crime report despite same being registered on the following day i.e. 31-03-2016 at late hours, especially when Mr. "A" was living with his father, who was actively searching for his sister along with other prosecution witnesses including complainant---Said circumstances made the evidence of eye-witness highly doubtful and unreliable---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was accordingly allowed.

(b) Criminal trial---

----Last seen evidence---Scope---Last seen theory comes into play where the time-gap between the point of time when the deceased is last seen alive in the company of accused and when the deceased is found dead is so small that possibility of any person other than the accused being the culprit of the crime becomes impossible---Evidence of last seen is considered a weak type of evidence which is not sufficient to sustain punishment in cases pertaining to capital punishment without corroboration from other circumstantial evidence available on the record.

The State v. Ahmed Omer Sheikh 2021 SCMR 873 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Last seen evidence and medical evidence---Contradictions---Accused was charged for committing murder of the sister of complainant and her daughter---Physical signs observed on the dead body were such to suggest decomposition well beyond the point of time of last seen as alleged by the prosecution and discovery of the corpse---Physical state in which the dead body was found by the Medical Examiner was inconsistent with the last seen evidence theory i.e. 49 hours before the autopsy---Time of death of deceased was much earlier than what was alleged by the prosecution witnesses of last seen---As per prosecution version, the accused committed murder of sister of the complainant through strangulation and in that respect, witnesses deposed that when dead body of deceased was recovered, they noticed ligature mark around her neck, but Medical Officer who conducted postmortem of the said deceased deposed that no ligature mark was present around the neck and no ligature mark could be identified on neck due to advance stage of putrification---Said facts clearly negated the prosecution theory of last seen, hence such piece of evidence was not believable and could not be relied upon to uphold the conviction of accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of dead body of the minor deceased---Contradictions regarding age of recovered body---Accused was charged for committing murder of the sister of complainant and her daughter---Prosecution version qua the recovery of dead body of minor deceased was not free from doubts---Complainant while submitting application alleged that dead body was recovered by officials of Rescue-1122 from canal, which was buried after postmortem and carrying out the proceedings under S. 174, Cr.P.C., by Sub-Inspector---Admittedly, said deceased was three years old, however, Medical Officer, who carried out postmortem examination of said deceased, mentioned her age as seven years in her postmortem report, whereas on her vaginal examination, it was observed that her hymen was torn, hence, in the given circumstances, it was not believable at all that a father subjected his real daughter to rape, which even otherwise was not the case of the prosecution---Admittedly no official of Rescue-1122 was examined by the prosecution to prove the factum of recovery of dead body of minor deceased---Moreover, prosecution could not prove that the dead body of unknown girl aged seven years as observed by the Medical officer at the time of conducting autopsy, was of deceased in question who in all eventualities was about 3 years of age---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Extra-judicial confession---Accused was charged for committing murder of the sister of complainant and her daughter---Record showed that the accused made extra judicial confession before two witnesses---Both the said witnesses failed to describe the actual date, when the accused approached them---Moreover, it was not borne out from the record that both the witnesses were influential persons or elders of the complainant party, hence, in absence of any such characteristics, the approaching of the accused to said witnesses seeking forgiveness from the complainant party was not appealable to man of prudent mind---Had the accused actually approached the witnesses, then why they did not produce him before complainant or at least before real brother of the complainant, whose house was adjacent to residence of one of the alleged witnesses---Both the said witnesses candidly admitted during cross-examination that they did not make any effort to apprehend the accused at that time---Moreover, Investigating Officer during cross-examination deposed that prior to 20.04.2016 both the said witnesses did not join the investigation, which led to an inference that such evidence was fabricated at a belated stage and could not be relied upon to sustain the conviction of accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Pointation of place of occurrence by accused---Accused was charged for committing murder of the sister of complainant and her daughter---According to Investigating Officer accused pointed out the place of occurrence and memo. of pointation was also prepared by him which was attested by witnesses---However, one of the witnesses didn't utter a single word qua that pointation or attestation of any such memo. of pointation--- Even otherwise, such pointation of place of occurrence, where dead body was allegedly left by the accused, was of no avail to prosecution case as it was already in knowledge of investigation agency---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was accordingly allowed.

Hayatullah v. State 2018 SCMR 2092 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of Chaddar/weapon of offence on the disclosure of accused---Accused was charged for committing murder of the sister of complainant and her daughter---As per statement of Investigating Officer, on 26.04.2016, the accused in pursuance of his disclosure led to the recovery of Chadar/weapon of offence, which was taken into possession vide recovery memo. attested by witnesses---Admittedly one of the marginal witnesses of said recovery memo. did not utter a single word about such recovery on the pointing out of the accused rather stated in his examination-in-chief that a knife was recovered on the pointation of accused---Hence, such recovery remained un-corroborated and the same is of no avail to the prosecution---Recovery, even otherwise, is considered a corroborative piece of evidence and solely can not be made basis for conviction of an accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused was charged for committing murder of the sister of complainant and her daughter---As per complainant, his sister/deceased was married to the accused 26/27 years prior to the occurrence and out of that wedlock, ten children were born---As per stance of the complainant, the relations between the spouses were not cordial---In order to prove such fact/motive, the prosecution had failed to lead any evidence---Some of the children of the accused were major, but they did not make any complaint regarding rash attitude of the accused with them or with their deceased mother during investigation---Said fact suggested that prosecution could not prove motive by furnishing cogent, persuasive and plausible evidence---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was accordingly allowed.

(i) 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 material evidence---Natural and important witnesses not produced---Accused was charged for committing murder of the sister of complainant and her daughter---As per prosecution theory on 30-03-2016 accused took his wife/sister of complainant, three daughters aged 6 years, 4 years and 3 years with him on a donkey cart for fetching grass---Two daughters of accused came back with donkey cart without accused, their deceased mother and one sister---Neither daughters of the accused were investigated nor were they produced before the trial Court, which would have its own adverse legal consequences---Both the said girls were most natural and important witnesses in the case but their evidence was withheld by the prosecution, which by all means led to an adverse inference under Art. 129(g) Qanoon-e-Shahadat, 1984, that had they been produced they would have not supported the prosecution case---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal against conviction was accordingly allowed.

(j) Criminal trial---

----Benefit of doubt---Principle---Even one circumstance is sufficient to bring suspicion in the mind of the Court and to acquit an accused, not as a matter of grace, but as of right.

Tariq Pervez v. The State 1995 SCMR 1345; Riaz Masih alias Mithoo v. The State 1995 SCMR 1730; Muhammad Akram v. The State 2009 SCMR 230 and Najaf Ali Shah v. The State 2021 SCMR 736 rel.

Muhammad Israr Chaudhary, Advocate/Defense Counsel on State expenses for Appellant.

Rao Muhammad Riaz Khan, Deputy District Public Prosecutor for the State.

Makhdoom Kaleem Ullah Hashmi for the Complainant.

2023 Y L R 2562

[Lahore (Rawalpindi Bench)]

Before Sardar Ahmed Naeem and Muhammad Amjad Rafiq, JJ

NAVEED SADIQ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 72 of 2019 and Murder Reference No. 30 of 2020, heard on 10th May, 2022.

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

----Ss. 302(b), 324, 337-D & 34---Qatl-i-amd, attempt to commit qatl-i-amd, jaifah, common intention---Appreciation of evidence---Benefit of doubt---Presence of complainant at the time and place of occurrence doubtful---Accused was charged that he along with his co-accused committed murder of the deceased persons and during the occurrence two persons also sustained injuries---Record showed that it was a daylight occurrence and the parties were known to each other but the prosecution witnesses failed to establish their presence at the crime scene as their version was not in consonance with the material collected during the investigation---First of all, it was observed that after the occurrence, both the injured, were shifted to hospital---Record divulged that the death certificates of the deceased persons were issued from said hospital---Whereas, injured witness was shifted to T.H.Q. Hospital who, on the one hand, had shown ignorance regarding shifting of injured-given up witness to hospital and, on the other hand, admitted that he dispatched both the injured to T.H.Q. hospital---Complainant during the cross-examination came out with different/ ambiguous version---No material was available on record to show as to how the injured/deceased were shifted to hospitals---Had the eye-witnesses been there, they could have confidently described about the shifting of the deceased/injured---Complainant sustained firearm injury at the hands of co-accused hitting on his back, chest and different parts of body---Medico-Legal Report of the injured suggested twelve injuries on his person but the story described by the complainant did not fit in the probabilities and his presence at the crime scene at the time of occurrence was not confirmed by the facts and circumstances of the case---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable shadow of doubt---Appeal against conviction was accordingly allowed.

(b) Criminal trial---

----Witness---Injured witness---Scope---Injury on a witness is only indication of his presence at the spot but is not affirmative proof of his credibility and truthfulness---Each and every word coming from the mouth of injured person is not truth---Mere presence of injuries would not stamp that he is a truthful witness---Testimony of injured witness is to be tested and appraised on the principles applied for appreciation of any other prosecution witness.

Altaf Hussain and 4 others v. The State PLD 2000 Lah. 216 and Amin Ali v. The State 2011 SCMR 323 rel.

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

----Ss. 302(b), 324, 337-D & 34---Criminal Procedure Code (V of 1898), S. 161---Qatl-i-amd, attempt to commit qatl-i-amd, jaifah, common intention---Appreciation of evidence---Benefit of doubt--- Statement of complainant recorded at belated stage---Accused was charged that he along with his co-accused committed murder of the deceased persons and during the occurrence two persons also sustained injuries---In the present case, the critical condition of the complainant was asserted by the witnesses during trial but no evidence whatsoever was brought on the file to confirm his incapability to make any statement till 05.12.2013 as described by Investigating Officer---Said witness further admitted that complainant was discharged on 27.11.2013 and that fact was not reported to him by the prosecution witnesses---However, the statement of the injured complainant was recorded by the Investigating Officer by reproducing his statement printed on a computer-generated paper, which was also open to objection---No convincing or plausible explanation was forthcoming on record for belated recording of the statement of complainant under S.161,Cr.P.C., which made the prosecution story doubtful---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable shadow of doubt---Appeal against conviction was accordingly allowed.

Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 rel.

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

----Ss. 302(b), 324, 337-D & 34---Qatl-i-amd, attempt to commit qatl-i-amd, jaifah, common intention---Appreciation of evidence---Co-accused acquitted on same set of evidence---Effect---Accused was charged that he along with his co-accused committed murder of the deceased persons and during the occurrence two persons also sustained injuries---Record showed that majority of the accused had earned acquittal and they were acquitted by the Trial Court on the same set of evidence---If the majority of the accused nominated in a case were acquitted on account of their false implication by the eye-witnesses then allegations of the remaining accused on the basis of same evidence could not be sustained without independent corroboration---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable shadow of doubt---Appeal against convic-tion was accordingly allowed.

Iftikhar Hussain and another v. State 2004 SCMR 1185; Sarfraz

alias Sappi and 2 others v. The State 2000 SCMR 1758 and Akhtar Ali

and others v. The State 2008 SCMR 6 rel.

(e) Criminal trial---

----Motive---Scope---Once a motive is set up by the prosecution and is not established then it would adversely affect the case of prosecution.

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

----Ss. 302(b), 324, 337-D & 34---Qatl-i-amd, attempt to commit qatl-i-amd, jaifah, common intention---Appreciation of evidence---Motive not proved---Effect---Accused was charged that he along with his co-accused committed murder of the deceased persons and during the occurrence two persons also sustained injuries---Motive behind the occurrence was an altercation between the accused and one of the deceased due to collision of their motorbikes about thirty minutes prior to the occurrence---Record showed that the injured witnesses had not seen the altercation between the accused and the deceased half hour prior to the occurrence of the present case---No other witness was produced during trial to establish that fact, thus, the prosecution failed to prove motive---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable shadow of doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b), 324, 337-D & 34---Qatl-i-amd, attempt to commit qatl-i-amd, jaifah, common intention---Appreciation of evidence---Recovery of weapon of offence on the instance of accused---Doubtful---Accused was charged that he along with his co-accused committed murder of the deceased persons and during the occurrence two persons also sustained injuries---Record showed that the accused was arrested in the present case on 19.11.2013 and got the weapon recovered on 28.11.2013---Place of recovery was admittedly not in exclusive possession of the accused---Recovery was effected from a residential room of the house of the accused---Pistol was lying on a table along with license---Recovery, in such circumstances, was not normally effected---However, it seemed as if raiding party was expected and welcomed by the inmates of the house from where it was effected with everything handed over to the Investigating Officer---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable shadow of doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b), 324, 337-D & 34---Qatl-i-amd, attempt to commit qatl-i-amd, jaifah, common intention---Appreciation of evidence---Scaled site plan not prepared on pointation of witnesses---Accused was charged that he along with his co-accused committed murder of the deceased persons and during the occurrence two persons also sustained injuries---Record showed that the scaled site plan was prepared by draftsman---One of the deceased reached at the crime scene on a motorbike but no motorbike was shown in the scaled site plan---Draftsman admitted during the cross-examination that he prepared the scaled site plan under instruction of the Investigating Officer as he was instructed by the witnesses---Meaning thereby that scaled site plan was prepared at the instance of Investigating Officer---Circumstances established that the prosecution had failed to prove its case against the accused beyond reasonable shadow of doubt---Appeal against conviction was accordingly allowed.

(i) Criminal trial---

----Benefit of doubt--- Principle---Findings of guilt against accused must rest surely in the evidence of unimpeachable character, thus, all the factors and circumstances leading to doubt have to be resolved in favour of the accused.

Tariq Pervaiz v. The State 1995 SCMR 1345 and Abdul Jabbar v. The State and another 2019 SCMR 129 rel.

Basharat Ullah Khan for Appellant.

Sajjad Hussain Bhatti, Deputy Prosecutor General along with Shafi-ul-Husnain, S.I. for the State.

Nasir Iqbal for the Complainant.

2023 Y L R 2594

[Lahore (Multan Bench)]

Before Ch. Muhammad Masood Jahangir, J

SAFDAR ALI---Petitioner

Versus

MEMBER (JUDICIAL-III), BOARD OF REVENUE, PUNJAB, LAHORE and another---Respondents

Writ Petition No. 3277 of 2012, heard on 9th December, 2021.

Punjab Land Revenue Rules, 1968---

----Rr. 17 & 22---Notification No. 812-2010/586-C(V)---Headman (Lumberdar), selection of---Appointment Criteria---Hereditary claims---Scope---After the death of the permanent headman (Lumberdar), his son (respondent) continued on the post, however, the concerned district Collector appointed the petitioner as Lumberdar which order was maintained by the Executive District Officer (Revenue)---Member Board of Revenue set-aside concurrent orders of subordinate authorities and appointed the respondent Petitioner invoked constitutional jurisdiction of the High Court against his elimination---Validity---Headman / Lumberdar was an administrative seat of its own class, which post could neither be designated as profession nor against any profit, rather the Headman (Lumberdar) held an honourary post acting as bridge inter se the landowners and Revenue Authorities, therefore, no one could claim his appointment as vested right---It is, in fact, the choice of Revenue Authority to appoint a suitable candidate per yardstick set out in R. 17 of the Punjab Land Revenue Rules, 1968 ('the Rules 1968') for discharging the obligations assigned to him in terms of R. 22 of the Rules 1968---Object should be that person best suited for the said post should be committed to enable the Administration, so that command and control over the state land, Exchequer as well as other affairs could be maintained---Rule 17 of the Rules, 1968 stipulated the features to be considered while selecting a suitable candidate for appointment headman (Lumberdar) which (features) still included the hereditary claims (along with other relevant features) and it was sine quo non for the Revenue Authorities to consider the same---Record showed that not only the father of the respondent, but his grandfather too remained Headman (Lumberdar) of the concerned revenue estate, thus Priority No. 1 as per R. 17 of the Rules, 1968 was available to the respondent; and he, after death of his father, remained headman (Lumberdar) for more than thirteen years, which appointment was made as per prevalent policy promulgated via Notification No. 812-2010/586-C(V) which stipulated that the land was to be retained by the family of deceased Lumberdar till appointment of new incumbent---Though the petitioner was having edge over the respondent vis-a-vis education, strength of property, yet neither said factors were sole criteria for selection nor could be given preference over hereditary claim as well as experience without a single complaint---Member Board of Revenue had perfectly passed the impugned order as per history of the case as well as relevant law while exercising his lawful authority---No material irregularity or patent illegality or jurisdictional defect having been noticed in the impugned order---constitutional petition was dismissed, in circumstances.

Abdul Wahid v. The Member, Board of Revenue, Punjab, Lahore and another 1971 SCMR 719; Muhammad Shaffi v. Member (Revenue), Board of Revenue, Punjab, Lahore and 2 others 1972 SCMR 253; Abdul Ghafoor v. The Member (Revenue) Board of Revenue and another 1982 SCMR 202; M. Nazir Ahmed v. Muhammad Aslam and others 2013 SCMR 363; Muhammad Saleem v. Member (Judicial-V) Board of Revenue, Punjab, Lahore and others 2007 MLD 349; Munawar v. The State 2011 YLR 1185 and Muhammad Rafique v. Nazir Ahmed and others 2007 SCMR 287 ref.

Syed Muhammad Ali Gillani for Petitioner.

Ahmed Nadeem Gehla, A.A.G. for Respondent No.1.

Syed Riaz-ul-Hassan Gillani for Respondent No.2.

2023 Y L R 2603

[Lahore]

Before Asim Hafeez, J

IMTIAZ AHMAD---Petitioner

Versus

MUHAMMAD ASHRAF (deceased) through L.Rs. and others---Respondents

Civil Revision No. 14614 of 2023, decided on 3rd March, 2023.

Specific Relief Act ( I of 1877)---

----S.12---Suit for specific performance---Agreement to sell---Extension of time for performance of contract---Time as essence of contract---Scope---Suit for specific performance instituted by predecessor of the respondents was decreed in his favour, which judgment was maintained by the Appellate Court---Contention of the petitioner/ defendant was that agreement contained a default clause (consequence whereof was cancellation of agreement and forfeiture of earnest money), thus the time was essence of contract; and that the plaintiff (predecessor of the respondents) was neither willing nor had finances to pay balance consideration within agreed time---Validity---Time/date for performance was, admittedly, extended for 5 and 1/4th months from the date of performance earlier agreed upon---Primary case of the petitioner/defendant was that a legal notice was issued by him to the plaintiff (predecessor of the respondents) after two months of extension of time/date of performance, calling for the performance of the conditions of contract but default persisted, however, the said fact, being relevant in the context of the controversy, was not proved by him (petitioner)---Even a copy of the said notice (allegedly sent after two months of extension of time/date of performance) was not produced in evidence, leading to adverse inference---Conversely, case of the respondents' predecessor was that the petitioner was required to perform reciprocal obligations, which performance was delayed, whereupon a legal notice was delivered after more than one year of said extended date (time) and on next date suit was instituted---Reply to the said notice by the petitioner, was brought on record in evidence; and factum of legal notice (having been sent )was admitted in said reply---Extension in the time for performance against part-consideration of Rupees one million was admitted---There was a presumption that time was not always the essence of the contract in agreement relating to the sale of immovable property unless intentions contrary thereto were proved---In the present case, fundamental plea of the petitioner was that legal notice was issued after two months of extension of time/date of performance, to convey intent that non-performance would result in cancellation of the contract and forfeiture of the amounts already paid but factum of the said notice was not proved---Said failure coupled with the factum of extension of time for performance were critical facts which convinced the Courts below to dismiss plea that time was the essence of the contract---Balance consideration was paid during the proceedings before the Trial Court---Absence of willingness and non-availability of funds on the part of plaintiff (predecessor of the respondents) were not proved through convincing evidence by the petitioner/defendant---No illegality or infirmity having been noticed in the concurrent findings of both the Courts below, revision petition was dismissed, in circumstances.

Lahore Cantonment Cooperative Housing Society Limited, Lahore Cantt. through Secretary v. Dr. Nusrat Ullah Chaudhary and others PLD 2002 SC 1068; Mst. Rehmat and others v. Mst. Zubaida Begum and others 2021 SCMR 1534 and Hamood Mehmood v. Mst. Shabana Ishaque 2017 SCMR 2022 distinguished.

2023 Y L R 2619

[Lahore]

Before Rasaal Hasan Syed, J

RAHEELA BEGUM and 2 others---Petitioners

Versus

NARGIS BANO and 5 others---Respondents

Civil Revision No. 55453 of 2022, decided on 12th October, 2022.

Specific Relief Act (I of 1877)---

----Ss.42, 39 & 54---Suit for declaration, cancellation of documents and permanent injunction---Oral gift---Onus of proof---Mutation(s), dispute of---Proof---Claim of the plaintiff was that she never made any oral gift (tamleeq) in favour of her husband, so not only the mutation having been attested on the basis of tamleeq (tamleeq-mutation) was fraudulent, but subsequent inheritance-mutation after the death of her husband was illegal also---Further plea of plaintiff was that by said inheritance-mutation, share was devolved upon the defendant/lady, and her siblings, whom her husband had already divorced---Suit was decreed and appeal preferred by the petitioners/defendants was dismissed by the Appellate Court---Validity---Record revealed that the respondent/plaintiff produced oral as well as documentary evidence in support of her claim---Where a transaction by way of oral gift (tamleeq) was claimed by the beneficiary but its existence was denied/disputed by the owner/transferor, the onus of proof would shift on to the beneficiary who would be required to prove oral transaction and also the subsequent mutation---Petitioners, who were under heavy onus to prove said stance, neither disclosed the mandatory particulars in written-statement viz date, time and place of oral gift and also the persons in whose presence such oral transaction was made nor took the trouble to produce any witness of such oral transaction and also the attestation of mutation---Neither the persons who allegedly identified the donor before the Revenue Officer were produced in the witness-box nor transfer of possession could be proved which constituted element of valid gift---Even otherwise, the claim of oral gift in such circumstances was unnatural/unusual on the face of it inasmuch has the donor had allegedly transferred her entire property to her late husband despite the fact she had her own children, thus the oral tamleeq could not be proved by any admissible evidence---Petitioners had failed to prove the oral transaction/ gift (tamleeq), and thus subsequent mutations were result of fraud, misrepresentation and were of no legal effect---No illegality or infirmity was noticed in the impugned orders and judgments passed by both the Courts below---Revision was dismissed, in circumstances.

Peer Baksh through LRs and others v. Mst. Khanzadi and others 2016 SCMR 1417; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729 and Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688 ref.

Aman Ullah Khan Niazi for Petitioners.

2023 Y L R 2654

[Lahore]

Before Sardar Muhammad Sarfraz Dogar and Ali Zia Bajwa, JJ

SHAKEEL-UR-REHMAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 182346, 197051 and Capital Sentence Reference No. 2-N of 2018, decided on 4th July, 2023.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.5 & 6---Transportation of narcotics--- Report of Government Analyst---Result of test or analysis---Prosecution case was that 40.800 kilograms charas was recovered from secret cavity of the car driven by accused---Forensic report reflected that details of protocols of tests had not been provided therein in the spirit of R. 6 of the Rules, 2001---Any report failing to describe in it the details of the full protocols applied for the test would be inconclusive, defective, unreliable and would not meet the evidentiary presumption attached to a report of the Government Analyst under S. 36(2) of the Act, 1997---In the forensic report it was simply mentioned that the submitted samples were identified to contain charas---Rule 6 of the Rules, 2001 made it imperative on an analyst to mention result of sample analyzed with full protocols applied thereon along with other details in the report issued for test/analysis by the Laboratory---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of reasonable doubt---Appeal against conviction was accordingly allowed.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039; Khair-Ul-Bashar v. The State 2019 SCMR 930; Shahid Pervaiz v. Ejaz Ahmad and others 2017 SCMR 206; Shafa Ullah Khan v. The State and another 2021 SCMR 2005 and Ameer Zeb v. The State PLD 2012 SC 380 rel.

(b) Criminal trial---

----Benefit of doubt---Principle---Single circumstance creating reasonable doubt would be sufficient to smash the veracity of prosecution case and sufficient to extend the benefit of doubt in favour of the accused not as a matter of grace or concession but as of right.

Qaisarullah and others v. The State 2009 SCMR 579 rel.

Imran Raza Khan and Zia-ur-Rehman Chaudhary for Appellant.

Zafar Iqbal Chohan, Special Prosecutor ANF for the State.

2023 Y L R 2663

[Lahore (Rawalpindi Bench)]

Before Ch. Abdul Aziz and Raja Shahid Mehmood Abbasi, JJ

QAISER AYUB and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 1030, 1031 and Capital Sentence Reference No. 7-T of 2018, decided on 8th June, 2022.

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

----Ss. 295-A, 295-B & 295-C---Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs, defiling, etc., of Holy Qur'an, use of derogatory remarks, etc., in respect of the Holy Prophet---Appreciation of evidence---Delay of ten months in lodging the FIR---Inconsequential---Accused were charged for publishing blasphemous material in the shape of portraits and articles through their website and giving wrong references from the Holy Quran in order to derogate and insult the Holy Prophet (PBUH) and excruciated the feelings and emotions of Muslims of all over the world, particularly those living in Pakistan---Record showed that the accused were settled at place "L", whereas complainant was having abode at place "T" and they were not only unknown to each other but also had no previous history of inter-se vengeance---Complainant in August, 2010, came across the blasphemous posts uploaded on a website---Admittedly, the FIR was registered with afflux of about ten months on 09.06.2011 but such delay had no adverse significance keeping in view the background and the peculiar facts of the case---Evident from record that after acquiring knowledge about the crime in question, complainant did not resort to slumber and immediately approached Police Station but unfortunately due to insouciant approach of the concerned SHO, the FIR was not registered immediately---Though the sensitivity of the matter was alluding from the plain review of accusations but still the complainant was made a rolling stone between a troika of SHO, S.P. (Investigation) and FIA---Facts remained that the accused persons were nominated in the complaint but no exception about it could be taken as complainant explained flawlessly as to how he acquired knowledge about the identity of actual culprits---According to complainant, the website not only contained the names of accused persons but also their contact numbers and email addresses---Circumstances established that the prosecution had proved its case against the accused persons beyond any shadow of doubt---Appeal against conviction was accordingly dismissed.

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

----Ss. 295-A, 295-B & 295-C---Criminal Procedure Code (V of 1898), S. 103---Qanun-e-Shahadat (10 of 1984), Art.40---Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs, defiling, etc., of Holy Qur'an, use of derogatory remarks, etc., in respect of the Holy Prophet---Appreciation of evidence---Non-association of private witnesses during recovery of various articles---Inconsequential---Accused were charged for publishing blasphemous material in the shape of portraits and articles through their website and giving wrong references from the Holy Quran in order to derogate and insult the Holy Prophet (PBUH) and excruciated the feelings and emotions of Muslims of all over the world, particularly those living in Pakistan---Case of prosecution was mainly resting upon the recovery of various articles effected from both the accused which included computers, CPUs and laptops etc.---From the recovered computers and laptops, blasphemous material was recovered in pursuance of digital forensic---Accused made a disclosure before S.P. and got recovered articles, i.e. CPUs, CDs, Wi-Fi devices, External devices, Laptops, Telephone set and other gadgets---Similarly, other accused was also arrested in the case and from his personal search a mobile phone along with SIM was recovered---Other accused made a disclosure and got recovered a laptop from the house of his father-in-law which was taken into possession---Proceedings, which led to the recovery of said articles were challenged on the ground that those were conducted without adhering to the provisions of S. 103, Cr.P.C., as no independent person from the vicinity was made witness---Noticeable that the articles were recovered in pursuance of the disclosure and pointation of the accused persons, witnessed by ASI and SP---Articles were recovered from places within the exclusive knowledge of both the accused persons and no one knew prior to recoveries that the computers and laptops had same blasphemous material which was uploaded on the internet---Said feature brought the recovery proceedings within the purview of Art. 40 of Qanun-e-Shahdat Order, 1984---Such proceedings gained legal credibility even if witnessed by two persons not necessarily hailing from the same neighbourhood---Admittedly, ASI and S.P provided all the necessary detail of recovery proceedings and their deposition did not giving rise to any legal flaw---Circumstances established that the prosecution had proved its case against the accused persons beyond any shadow of doubt---Appeal against conviction was accordingly dismissed.

Sh. Muhammad Amjad v. The State PLD 2003 SC 704 rel.

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

----Ss. 295-A, 295-B & 295-C---Qanun-e-Shahadat (10 of 1984), Arts. 46-A & 164---Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs, defiling, etc., of Holy Qur'an, use of derogatory remarks, etc., in respect of the Holy Prophet---Appreciation of evidence---Report of Forensic Science Laboratory establishing that offence alleged---Accused were charged for publishing blasphemous material in the shape of portraits and articles through their website and giving wrong references from the Holy Quran in order to derogate and insult the Holy Prophet (PBUH) and excruciated the feelings and emotions of Muslims of all over the world, particularly those living in Pakistan---Record showed that the articles recovered from accused included a CPU and laptop---Both the said articles were forwarded for forensic analysis to the office of Cyber Crime FIA, where the needful was done by Deputy Director through his report---Forensic analysis lifted veil from the misdeeds of accused as blasphemous material was recovered---Said materials were extremely offensive, derogatory and contemptuous not only towards Almighty Allah but also to Holy Prophet (PBUH) and religion of Islam---Moreover, it divulged through digital forensic analysis report that almost the same material was uploaded on the internet---From the recovered documents, it emerged that accused made access to the same website by using his email address---So far as laptop recovered from accused was concerned, from its digital forensic personal information of accused like E-tickets for foreign destinations, hotel reservation in America, US Visa Application, bank statements and a receipt of Western Union were recovered--- Likewise, personal correspondence of accused were recovered from the same computers, the perusal of which unfolded that he was involved in the sinister activity of conspiring with other blasphemers living across the globe---Inevitably, the said data related to the personal information of accused and established a strong nexus between him and the recovered computers---So far as other accused was concerned, he got recovered a laptop during proceedings---Even that laptop was subjected to forensic analysis for which report was issued---Unfortunately, the laptop recovered from other accused also contained hate material against the two divine books Holy Quran and Holy Bible, against Holy Prophet (PBUH) and Hazrat Ayesha (A.S.), against Allah Almighty as well as religion of Islam---Said incriminating material extracted from the computers of both the accused through digital forensic was backed by Arts. 46-A & 164 of Qanun-e-Shahdat Order, 1984---Circumstances established that the prosecution had proved its case against the accused persons beyond any shadow of doubt---Appeal against conviction was accordingly dismissed.

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

----Ss. 295-A, 295-B & 295-C---Criminal Procedure Code (V of 1898), S. 342---Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs, defiling, etc., of Holy Qur'an, use of derogatory remarks, etc., in respect of the Holy Prophet---Appreciation of evidence---Incriminating material put to the accused while recording their statements under S. 342, Cr.P.C.---Accused were charged for publishing blasphemous material in the shape of portraits and articles through their website and giving wrong references from the Holy Quran in order to derogate and insult the Holy Prophet (PBUH) and excruciated the feelings and emotions of Muslims of all over the world, particularly those living in Pakistan---Noticeable that while being examined under S. 342, Cr.P.C. both the accused persons were confronted with the contents of report and the blasphemous substance discovered from their respective computers and hard discs but they failed to counter it satisfactorily---Similarly the accused persons were also given opportunity to explain about the IP address and recovered broadband device used for execution of their nefarious activities but they came forward with a brazen faced denial without offering any acknowledged legal explanation---Solitary justification for their false implication set out in reference to the question "why this case against you" was found to be nothing but a jumble of lies as it had no backing of any material---Circumstances established that the prosecution had proved its case against the accused persons beyond any shadow of doubt---Appeal against conviction was accordingly dismissed.

Tariq Bashir and Khurram Shehzad Maan for Appellants.

Mrs. Memoona Ehsan-ul-Haq, D.D.P.P. with Tayyab S.I. for the State.

Malik Tariq Mehmood and Muhammad Tariq Naeem Awan for the Complainant.

2023 Y L R 2691

[Lahore]

Before Sardar Muhammad Sarfraz Dogar, J

MUHAMMAD IBRAHIM and 4 others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 220 and Writ Petition No. 5874 of 2012, decided on 15th May, 2023.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 4---Prevention of illegal dispossession of property---Appreciation of evidence---Benefit of doubt---Allegation against the accused persons was that they took over the possession of land of the complainant forcibly and illegally---Admitted fact that the alleged occurrence was stated to be occured on 03.08.2010 at about 11:00 a.m. and admittedly, the complainant had himself filed suit for specific performance regarding the suit property on 29.10.2004 whereas the Illegal Dispossession Act, 2005 was promulgated in the year 2005, therefore, the dispute in respect of land was already pending adjudication before promulgation of Illegal Dispossession Act, 2005---Admittedly, certified copy of Khasra Girdawari did not bear signatures of circle Patwari---Admittedly, the accused persons were co-sharers in the Khata and mutation in that regard was also available on file---Co-sharer was presumed to be in possession of each and every inch of joint property---Thus, applicability of the Illegal Dispossession Act, 2005, in such a case required extraordinary circumstances, which were very much lacking in present case---Nothing was on record which could establish any link of the accused persons with land grabbers or qabza mafia---Further, complainant admitted that at present, possession of the disputed land was with him and after decreeing of civil suit in his favour, accused persons preferred Civil Revision which was pending adjudication before the Court---Dispute, prima facie, appeared to be between co-sharers/co-owners---Position, being so, brought the case of the accused persons out of the purview of S. 3 the Illegal Dispossession Act, 2005---Appeal against conviction was allowed, in circumstances.

Waqar Ali and others v. The State through Prosecutor/ Advocate-General, Peshawar and others PLD 2011 SC 181 and Habibullah v. Abdul Manan 2012 SCMR 1533 rel.

Tahir Munir Malik for Appellants.

Malik Suleman Awan and Mian Muhammad Salman Idrees for Respondents.

Ikraam Ullah Khan Niazi, Deputy Prosecutor General and Ms. Khalida Parveen Addl. Advocate General, Punjab for the State.

2023 Y L R 34

[Peshawar (Abbottabad Bench)]

Before Muhammad Ibrahim Khan and Shakeel Ahmad, JJ

Mst. ZAIB UN NISA---Petitioner

Versus

QASIM AZEEM and 3 others---Respondents

Writ Petition No. 1432-A of 2019, decided on 7th October, 2020.

Constitution of Pakistan---

----Art. 199---Habeas corpus---Custody of minor---Minors in custody of uncle---Scope---Petitioner/real mother sought custody of her two children---Children were residing with the uncle as their father was posted at a mental hospital---Children were held in custody without lawful authority in an unlawful manner without court orders---Even if the children were detained by their grandmother in an improper custody in the presence of their real mother, they were liable for recovery and be handed over to the custody of real mother subject to final outcome of the petition pending adjudication between the parties before the Guardian Judge---Constitutional petition was accepted.

Shah Khawar and Shabnam Nawaz and Hajra Shahid for Petitioner.

Awais Khan Alizai and Ms. Nazish Jehangiri, Advocates (DPO Mansehra and 02 others) By Raja Muhammad Zubair, A.A.G. for Respondents.

2023 Y L R 53

[Peshawar]

Before Lal Jan Khattak and Musarrat Hilali, JJ

Mst. MIRAJ BIBI and 5 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Attorney General of Pakistan and 3 others---Respondents

Writ Petition No. 385-P of 2021 with C.M. No. 2132 of 2021, decided on 11th November, 2021.

Constitution of Pakistan---

----Art.199---Constitutional jurisdiction---Alternate remedy---Scope---Case of petitioners was that their predecessor was allotted 3 shops by the Cantonment Executive Officer wherein they had started business and were paying huge monthly rent but due to the construction of wall by the respondents the passage/entry towards the shops has been closed as a result the business activities carried out in the shops had affected---Validity---Petitioners might have a genuine grievance but on no count same could be resolved through a writ petition as not only alternate remedy was available to them for redressal of their grievance but the forum existed too---Constitutional petition was dismissed.

Muhammad Furqan Yousafzai for Petitioners.

Qazi Babar Irshad, D.A.G for Respondents.

2023 Y L R 74

[Peshawar]

Before Ijaz Anwar, J

Khanzada MUHAMMAD RAFIQUE KHAN---Appellant

Versus

HUSSAIN-UR-REHMAN

and 46 others---Respondents

C.R. No.381-P of 2012, decided on 9th May, 2022.

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

----Ss. 58(d) & 60---Limitation Act (IX of 1908), Ss. 20, 28 & Art. 147---Usufructuary mortgage, redemption of---Fresh period of limitation---Predecessors of original respondents were owners of the suit property and had mortgaged the same in 1870---Contesting/original respondents/defendants claimed that they purchased the mortgaged rights of the suit property from the original mortgagees vide two mutations attested in 1974 and 1981; that they were owners in possession of the suit property since then---Suit for declaration was filed by original plaintiffs claimed that they were owners of the suit property; that the said mutations were invalid; and they were entitled for possession through redemption/recovery of produce from year 1998---Present petitioners purchased the property from the original plaintiffs through registered deeds attested on 19.10.2005, 05.12.2005 and 15.06.2005 and mutations were also duly entered thereupon---Original respondents, except the original defendants, submitted their cognovits---Suit of petitioners/proforma respondents was concurrently dismissed on ground of limitation (more than 160 years delay) and prescriptive rights accrued in favour of contesting respondents--- Validity--- Respondents stepped into the shoes of the previous mortgagees through new mutations, thus a fresh period of limitation would be computed from the date of subrogation---Such was a usufructuary mortgage as the original plaintiffs were enjoying the possession of the suit property since inception of such mortgage---Receipt of produce was deemed as an acknowledgment and such receipt during the persistence of mortgage would give fresh cause of action to the mortgagor on every harvest---Once a mortgage was always a mortgage---Section 28 of the Limitation Act, 1908, was repugnant to the Injunctions of Islam so no question of attaining the title by mortgagees on prescription on expiry of 60 years would rise---Revision petition was allowed and suit of present petitioner was decreed as to be entitled to redemption of the mortgage and possession of the suit property.

Muhammad Ishaq Battagrami for Petitioner.

Aimal Khan Barkandi for Respondents.

2023 Y L R 126

[Peshawar]

Before Musarrat Hilali, J

ABDUL WASI---Appellant

Versus

The STATE---Respondent

Criminal Miscellaneous (B.A.) No. 2154-P of 2021, decided on 13th September, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), S. 9(1)(c)---Possession of narcotics---Bail, grant of---Scope---Prosecution case was that the accused got recovered 4.8 kilograms of heroin and 4.6 kilograms of charas---Nothing was recovered from the possession of accused rather the contraband was recovered on his indication from a 'baitak' close to his house which was not owned by him as he himself was a juvenile as per his school certificate and Form-B issued by NADRA showed his age as 13 years, 02 months and 19 days---Accused was a student of 8th class---Accused had no criminal antecedents---Accused was admitted to bail, in circumstances.

Noor Alam Khan and Ms. Shabina Noor for Petitioners.

Waqas Khan Chamkani, S.P.P. for the State.

2023 Y L R 171

[Peshawar]

Before Rooh-ul-Amin Khan, J

Mst. NADIA---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Application No. 2837-P of 2021, decided on 24th September, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), S. 9(d)---Transportation of narcotics---Bail, grant of---Accused, sitting in rear seat---Accused, a pregnant lady and another having suckling baby---Scope---Accused ladies were allegedly sitting in the rear seat of a vehicle from the secret cavities of which 18 packets of charas each weighing 1200 grams and 5 packets of opium each weighing 1200 grams were recovered--- No contraband / narcotic was shown to be recovered from personal/direct possession of the accused persons---Recovery of narcotics had been shown from secret cavities of the motorcar---Only circumstance against the accused persons was that they were travelling in the aforesaid motorcar driven by co-accused---In absence of any clear evidence/material on record to prima facie establish conscious knowledge of the accused qua the concealed narcotics or their nexus with the driver, their participation in the commission of offence required further probe---One of the accused persons was pregnant of 21 weeks, whereas, the other had a suckling baby of 2 years---Accused persons were admitted to post-arrest bail, in circumstances.

Javed v. The State 2017 SCMR 531; Cr. Petition No.1114 of 2017 Farhad Khan v. The State through A.G., KPK" dated 21.12.2017; Cr. Misc. B.A. No.1573-P/2017; Sad Khan v. The State/ANF" decided on 25.09.2017, Cr. Misc. B.A. No.1480-P/2017 decided on 25.07.2017 and Cr. Misc. B.A. No.2283-P/2017 decided on 27.10.2017 ref.

Mst. Nusrat v. The State 1996 SCMR 973 rel.

Mst. Asim Shamshad for Petitioner.

Muhammad Nisar Khan, A.A.G. for the State.

2023 Y L R 199

[Peshawar]

Before Qaiser Rashid Khan, C.J.

FAISAL AMIN and 3 others---Petitioners

Versus

The STATE through A.G. Office Peshawar and another---Respondents

Bail Petition No. 4183-P of 2021, decided on 6th December, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 365, 377, 506, 392, 148 & 149---Kidnapping or abducting with intent to secretly and wrongfully confine person, unnatural offences, robbery, criminal intimidation, rioting, armed with deadly weapon---Bail, refusal of---Scope---Allegations against accused persons was that they had abducted a transgender person, severely beaten her and thereafter committed unnatural offence with her---Victim had directly nominated the accused persons for the cruel treatment meted out to her and that too, because of her gender---Medical report of the victim was also in line with the prosecution version---So far as compromise effected between the parties was concerned, it needed no reiteration that the offence for which the accused persons were charged with was not compoundable---Such plea in like manner cases could not be taken into consideration at the bail stage---Accused persons were prima facie connected with the commission of offence, which was not only serious in nature but was also an affront to the collective morality and norms of the society and attracted the prohibitory limb of S. 497, Cr.P.C.---Accused persons were disentitled to the concession of bail---Bail petition was dismissed, in circumstances.

Syed Muhammad Ilyas for Petitioners.

Syed Sikandar Hayat Shah, A.A.G. for Respondents

The Complainant in person along with the abductee transgender Anmol.

2023 Y L R 234

[Peshawar (Abbottabad Bench)]

Before Mohammad Ibrahim Khan, J

NIAZ---Appellant

Versus

The STATE and another---Respondents

Criminal Miscellaneous (B.A.) No. 996-A with Criminal Miscellaneous No. 1159-A of 2021, decided on 11th November, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324, 337-F (iii) & 34---Attempt to commit qatl-i-amd, mutalahimah, common intention---Bail, grant of---Contradiction in ocular and medical account---Scope---No doubt, accused was directly charged by the complainant in a promptly lodged FIR and allegedly the weapon of offence had also been recovered from him on his indication but intriguing aspect of the case was that as per injury sheet prepared by police a single firearm injury had been found below the umbilicus with bleeding whereas according to medico-legal report two injuries had been found---Doctor had opined that both the injuries i.e. entry and exit wounds had charring marks with no active bleedings, thus, the version of complainant was not in line with the medical report---Accused had succeeded in making a case arguable for the purpose of bail---Petition for grant of bail was allowed, in circumstances.

Bahadur Khan v. Ajmal Khan and another 1998 PCr.LJ 728 ref.

Sheqab Muhammad v. The State and others 2020 SCMR 1486; Ghazan Khan v. Mst. Ameer Shuma and another 2021 SCMR 1157; Noor Aslam v. The State through PG and another 2021 SCMR 1225; Khial Muhammad v. The State through Shaheed Ullah 2011 PCr.LJ 1308 and Wazeer Ali v. The State 2019 PCr.LJ Note 24 distinguished.

Wajih-ur-Rehman Khan Swati for Petitioner.

Ms. Fiza Ahmad Nizami for the State.

Dildar Ahmad Khan Lughmani for the Complainant.

2023 Y L R 254

[Peshawar (Mingora Bench)]

Before Muhammad Ijaz Khan, J

KISHWAR KHAN and 3 others---Petitioners

Versus

JAN AFROZA (Widow) and others---Respondents

Civil Revision No. 779-P of 2007, decided on 26th May, 2022.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), Art.117---Civil Procedure Code (V of 1908), S.115---Suit for declaration and injunction---Title, proof of---Onus to prove---Concurrent findings of two Courts below---Petitioners/ plaintiffs were aggrieved of judgments and decrees passed by two Courts below dismissing their suit and appeal---Validity---Petitioners/plaintiffs were to prove their case through cogent, convincing and independent evidence and could not derive any benefit from lapses---Two Courts below concurrently recorded their findings of facts and law which were in accordance with available evidence of parties---High Court in exercise of revisional jurisdiction declined to interfere in concurrent findings of two Courts below as the same did not suffer from any misreading or non-reading of evidence nor the same suffered from any illegalities or material irregularities---Revision was dismissed, in circumstances.

Muhammad Saleem Shah and 88 others v. Aziz-ur-Rehman Shah and 41 others PLD 2002 SC 280; Mst. Bibi Zohra v. Abdur Rehman 2003 MLD 918; Mst. Hussan Pari and others v. Muqarrab Khan and others 2004 CLC 211; Aziz-ur-Rahman and another v. Atai Khan (represented by his heirs) and 6 others PLD 1976 Pesh. 60; Hakeem Shah v. Sawab Khan PLD 2002 SC 200; Shamshad v. Arif Ashraf Khan and others 2010 SCMR 473; 2014 CLC 990; Sultan Muhammad and another v. Muhammad Qasim and others 2010 SCMR 1630; Fazal Hanan v. Mukaram Jan and others 2007 CLC 894; Haji Allah Bakhsh v. Abdullah Khan and others 2001 SCMR 363; Nawab Khan and others v. Said Karim Khan and others 1997 SCMR 1840; Faqir Muhammad Khurshid and others v. Chief Administrator of Auqaf PLD 1987 SC 60; Makhdum Hasan Baksh v. Ilahi Bakhsh and others (1913) 48 PR 27; Mst. Zarsheda v. Nobat Khan PLD 2022 SC 21; Shahbaz Gul and others v. Muhammad Younas Khan and others 2020 SCMR 867; Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others 2010 SCMR 984; Cantonment Board through Executive Officer, Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others 2014 SCMR 161; Atiq-ur-Rehman v. Muhammad Amin PLD 2006 SC 309; Sultan Muhammad and another v. Muhammad Qasim and others 2010 SCMR 1630 and Muhammad Sarwar and others v. Hashmal Khan and others PLD 2022 SC 13 ref.

Mian Hussain Ali for Petitioners.

Shamsher Ali Khan Mirkhankhel, for Respondents.

2023 Y L R 289

[Peshawar]

Before Lal Jan Khattak and Ishtiaq Ibrahim, JJ

ADNAN GUL and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 527-P of 2020, decided on 14th April, 2022.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Non-submission of Forensic Science Laboratory Report---Effect---Prosecution case was that twenty kilograms heroin was recovered from the secret cavities of the vehicle of accused persons---Perusal of the record would show that in the case in the present case the prosecution had not produced original Forensic Science Laboratory Report whereunder the representative samples, separated from the recovered stuff, had been found to be of heroin---Original Forensic Science Laboratory Report was statedly misplaced and as such its duplicate was produced in evidence---Record showed that there was no such material which could show that the duplicate copy of the Forensic Science Laboratory Report was produced by the Officials of the concerned Laboratory and likewise the duplicate copy so produced before the court had also not been signed/attested by the Chemical Examiner or the Chemical Expert nor by the Director of the Laboratory--- No application was available on the case file moved by the prosecution seeking permission to produce secondary evidence regarding the misplaced original Forensic Science Laboratory Report---Production of duplicate of the original Forensic Science Laboratory Report could not be considered as secondary evidence and same on no count could be relied upon for recording conviction of the accused---None from the Forensic Science Laboratory had appeared before the Trial Court verifying genuineness of the duplicate so produced before it---Circumstances established that the prosecution had not proved its case through cogent and reliable evidence---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Recovery was not effected from the spot---Effect---Prosecution case was that twenty kilograms heroine was recovered from the secret cavities of the vehicle of the accused persons---Record showed that the recovery was effected near Motorway Interchange wherefrom the Anti Narcotics Force Officials brought the vehicle along with the accused persons to Peshawar and in the Police Station of Anti Narcotics Force at Peshawar the report was lodged and the recovery was effected from the vehicle---Scribing murasila was not sent at the place of recovered had put the prosecution case under heavy doubts as to its accuracy as contained in the FIR---Though for not conducting the legal proceedings on the spot and for bringing the vehicle along with the contraband and the accused to Police Station Anti- Narcotics Force, Peshawar, the complainant had given security reasons for the same but said reason was of no help to the prosecution as the complainant had received information in advance at Peshawar regarding the smuggling of contraband to Karachi from Peshawar---Complainant had sufficient time to take proper security measures which he did not do---According to the FIR, there were about more than dozen of Anti-Narcotics Force Officials with the complainant and as such in view of that heavy contingent of Anti Narcotics Force Officials there should not have been any imminent danger or any issue of law and order situation for the complainant to act on the spot---In addition to the above, the complainant could have asked for help from police of the nearby Police Station which too he did not do---Circumstances established that the prosecution had not proved its case through cogent ad reliable evidence---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Quantity of witnesses---Scope---Prosecution case was that twenty kilograms heroin was recovered from the secret cavities of the vehicle of the accused persons---Record showed that out of the 13 Anti Narcotics Force Officials, who were with the complainant on the spot, only two had been cited and produced in support of the prosecution case as its witnesses---Though the prosecution was not bound to produce all those Officials who participated in some operation as its witnesses but when in a case maximum punishment provided was of death or imprisonment for life then in that case production of maximum number of witnesses available on the scene were to be produced for their evidence so that case against the accused could be proved beyond any reasonable doubt---Circumstances established that the prosecution had not proved its case through cogent and reliable evidence---Appeal against conviction was allowed, in circumstances.

Noor Alam Khan for Appellants.

Tariq Kakar, Special Prosecutor for the ANF.

2023 Y L R 302

[Peshawar (D.I. Khan Bench)]

Before Muhammad Faheem Wali, J

PESCO through Chief Executive PESCO and others---Petitioners

Versus

MOHIB ULLAH KHAN and another---Respondents

Civil Revision No. 91-D with C.M. No.207-D of 2021, decided on 24th May, 2022.

(a) Electricity Act (IX of 1910)---

----S. 26---Dispute as to electricity bill---Scope---Bare perusal of S. 26(6) of Electricity Act, 1910 transpires that where any difference or dispute arises between a licensee and a consumer as to whether any meter, maximum demand indicator or other measuring apparatus is or is not correct the matter shall be decided, upon the application of either party, by an Electric Inspector, within a period of ninety days from the date of receipt of such application, after affording the parties an opportunity of being heard.

(b) Electricity Act (IX of 1910)---

----Ss. 26 & 26-A---Civil Procedure Code (V of 1908), S. 9---Dishonest abstraction or consumption of energy---Dispute as to electricity bill---Detection bill, issuance of---Jurisdiction of Electric Inspector---Scope--- Whenever, licensee and a consumer feel themselves aggrieved by the working of metering equipments then jurisdiction would lie with the Electric Inspector and that of the Civil Court would be barred, but for that, the basic requirement would be whenever the licensee consider any dispute to be in relation to the metering equipments and not otherwise because in that case the licensee cannot of its own issue any assessment bill to the consumer directly without getting the same adjudicated upon by the Electric Inspector within the stipulated time and if the licensee considers otherwise than approaching the Electric Inspector for settlement of dispute and issue an assessment bill to the consumer, then it cannot be construed to have been issued under S.26(6) rather the same will be considered to have been issued under the provision of S. 26-A of Electricity Act, 1910, which allows the department to send an assessment bill to a consumer if the same does not pertain to a dispute relating to working or otherwise of the metering equipment---Once an assessment bill on whatever premise has been issued to the consumer without any order from the Electric Inspector, the same, however, would not be immune from being challenged in the competent court of civil jurisdiction.

Water and Power Development Authority and others v. Messrs Kamal Food (Pvt.) Ltd., Okara and others PLD 2012 SC 371 rel.

(c) Electricity Act (IX of 1910)---

----S. 26-A---Dishonest abstraction or consumption of energy--- Scope---Section 26-A of the Electricity Act, 1910, does not empower the Electric Inspector to take cognizance of any allegation by a licensee of dishonest abstraction or consumption of energy by the consumer, as unlike the preceding statutory provisions, it does not make any reference to Electric Inspector.

Colony Textile Mills Ltd. Multan v. Chief Executive, MEPCO 2004 SCMR 1679 rel.

(d) Electricity Act (IX of 1910)---

----S. 26-A---Dishonest abstraction or consumption of energy--- Theft of electricity---Scope---In case of theft of electricity or illegal abstraction of energy through by passing metering equipments, the Electric Inspector has no jurisdiction to adjudicate upon a dispute---Only the court of plenary jurisdiction can resolve such a controversy.

Muhammad Anwar Awan for Petitioners.

Not represented (Motion case)

2023 Y L R 363

[Peshawar]

Before Lal Jan Khattak, J

MOSA KHAN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Application No. 3147-P of 2021, decided on 24th September, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497--- Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), Ss. 9(d) & 11(c)---Trafficking of narcotics---Possession of methamphetamine---Bail, grant of---Conscious knowledge of accused---Further inquiry---Scope---Accused was charged for trafficking 10,000 grams of heroin and 6000 grams of amphetamine and possessing 20 grams of heroin and 10 grams of ice---Accused was found sitting on front seat of the vehicle at the time of recovery---Nothing was available on the case file to show that either the accused was privy to the bid of smuggling or was having any slightest conscious knowledge about presence of the recovered contraband in the car so as to show his nexus with the foiled attempt of the smuggling---Accused person's participation in the crime needed further inquiry---Tewenty grams of heroin and 10 grams of ice was recovered from direct possession of the accused but meager quantity of contraband would not be made a basis to dub him as co-smuggler of the narcotics which was subject matter of the case---Accused had made out a case for the purpose of his release on bail---Petition for grant of bail was allowed.

Zohra Durrani and Qazafi Durrani for Petitioner.

Inam Khan Yousfzai, Addl. A.G. for the State.

2023 Y L R 367

[Peshawar]

Before Mohammad Ibrahim Khan, J

RAZA KHAN---Appellant

Versus

Haji JAVAID and others---Respondents

F.A.O. No. 51-P with C.M. No. 233-P of 2022, decided on 25th July, 2022.

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

----S. 17---Ejectment of tenant---Striking of defence---Default in payment of monthly rent---Scope---Appellants were tenants and their defence was struck of due to their failure to deposit monthly rent and eviction order was passed by Rent Controller---Validity---Tenant had no option left to delay making deposit as each day after 5th of each month would fall within the definition of "default"---Default of numerous days when appellant was supposed to deposit defaulted monthly rent with the Court of Rent Controller---On failure of appellant to deposit even a single day after its due date was over, it was incumbent upon Rent Controller to strike the defence within the meaning of S.17(9) of Cantonments Rent Restriction Act, 1962---High Court declined to interfere in eviction order as there was refusal and non-payment of monthly rent along with arrears which were due against tenants who willfully defaulted---Appeal was dismissed, in circumstances.

Safeer Travels (Pvt.) Ltd. v. Muhammad Khalid Shafi through legal heirs PLD 2007 SC 504; M.H. Mussadaq v. Muhammad Zafar Iqbal and another 2004 SCMR 1453 and Dr. Muhammad Safdar v. Mst. Shahista Amjad 2015 MLD 1342 rel.

Zia-ur-Rehman for Appellant.

Shaiber Khan, Jalal ud Din and Sheraz Khan for Respondents.

2023 Y L R 408

[Peshawar]

Before Musarrat Hilali and Ijaz Anwar, JJ

MUHAMMAD SAJJAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 689-P of 2020, decided on 29th March, 2022.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Benefit of doubt---Prosecution case was that twelve packets of charas, total weighing twelve kilograms, was recovered from the secret cavities of the car driven by the accused---Record showed that the alleged recovery was not made from personal possession of the accused rather it was made from the fuel tank, fixed in the motorcar---Neither the vehicle was registered in the name of accused, nor there was any documents, which could show any nexus with him, nor there was any receipt through which the motorcar was given to him on rent---According to the contents of FIR, the recovery was effected from the motorcar, while report/opinion was sought by the Investigation Agency from the Motor Registering Authority/Forensic Science Laboratory with regard to motorcar through applications---No report/opinion of either of the vehicle was available and that in whose name the vehicle was registered, therefore, in view of the said discrepancy, false implication of the accused in the case by letting off the real culprits by the police could not be ruled out---Patrol-tank from which the illegal stuff was allegedly recovered was neither produced before the court nor it was exhibited to confirm as to whether it was having the capacity to contain such a huge quantity of narcotics, which aspect of the case also made the story of prosecution 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) Control of Narcotic Substances Act (XXV of 1997)---

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Prosecution case was that twelve packets of charas, total weighing twelve kilograms, was recovered from the secret cavities of the car driven by the accused---Seizing Officer stated in cross-examination that he had detached the fuel tank from the motorcar, while other witness stated in cross-examination that after detaching the fuel tank, it was taken through recovery memo. which was signed by him---Investigating Officer stated that neither the fuel tank was detached from the motorcar nor it was taken into possession nor in that respect there was a recovery memo. on the record---Seizing Officer of the case and Investigating Officer were different persons, however, monogram on each parcel was affixed of third person, without explanation as to whose name the said monogram was prepared and whether any official by the said name was ever posted in the police station, such divergence appearing on the face of evidence also could not be left unnoticed---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)--- Control of Narcotic Substances (Government Analysts) Rules, 2001, R.6---Possession of narcotics---Report of Chemical Analysts---Protocols non-indication of---Per se admissibility---Principle---Twelve packets of charas, total weighing twelve kilograms, was recovered from the secret cavities of the car driven by the accused---Absence of necessary protocols on the Forensic Science Laboratory Report regarding the tests applied for as required under S. 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 and uncertainty as to safe custody and safe transmission of the representative samples to the Forensic Science Laboratory was yet another blow to the prosecution case making the Forensic Science Laboratory Report unreliable because neither the Seizing Officer nor Official who had taken the murasilla to the Police Station had said anything as to handing over the representative samples to the Moharrir of the Police Station---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.

Noor Alam Khan and Ms. Shabina Noor for Appellant.

Muhammad Bashar Naveed, Asstt. A.G. for the State.

2023 Y L R 434

[Peshawar]

Before Muhammad Naeem Anwar, J

RAZA SHAH---Petitioner

Versus

SUPERINTENDENT CENTRAL PRISON, PESHAWAR and another---Respondents

Criminal Revision Petition No. 28-P of 2021, decided on 29th July, 2021.

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

----Ss. 406, 420 & 489-F---Criminal Procedure Code (V of 1898), Ss. 435 & 439---Criminal breach of trust, cheating, dishonestly issuing a cheque---Petitioner had challenged the order of the first appellate court vide which his appeal for conversion of consecutive sentences into concurrent, was dismissed---Validity---Admittedly, for all the offences in four FIRs, separate challan were submitted before the court---Though three out of four cases were pending in one and the same court however, the trials were undeniably separate---Accused had pleaded his guilt, in all the four cases, before the Trial Court after framing of charge---Earlier when charge was framed he denied the allegations against and claimed trial however, in three out of four cases when he admitted the commission of offence he was not served with a notice as required under S.243 of Cr.P.C. which was mandatory---Record showed that on the basis of admission, the Trial Court without serving him with show cause notice convicted and sentenced him in all the three cases on the same date and in each case, he was awarded three years simple imprisonment with fine, which was done when the accused/petitioner was produced in custody, solely on the basis of application, when he placed himself at the mercy of Court---Undisputedly, the petitioner had not challenged his conviction before the competent forum---Further, a sentence of three years' imprisonment had to commensurate within the offences---Petitioner had been convicted for the offence under S.489-F, P.P.C., for the period of three years in each, however, in case the sentences were not to run concurrently, the petitioner would have to serve a total of 12 years if he paid the fine in each case otherwise petitioner would remain there for further period of four months (SI), such as, further incarceration of the petitioner beyond three years with one month (SI) for failure of payment of fine---Keeping in view the circumstances of the case and the powers of High Court it was the judicial obligation of the Court to undo a wrong in course of administration of justice or to prevent continuation of unnecessary judicial process---Accordingly, it could safely be held that discretion to make the sentences to run consecutively or concurrently would be governed by different consideration, like facts of each case, nature and character of the offences, criminal history sheet and record of the offender, his age, sex---In penal or procedural provisions relating to criminal jurisprudence, liability or punishment would be capable of narrower construction, but the construction which would tilt the interpretation favourable to the accused would be preferred over the interpretation which would adversely affect the right of a person/accused under trial---Petition was disposed of in the term that all sentences awarded to the petitioner would be deemed to run concurrently.

Sharif Khan v. The State 1991 PCr.LJ 1761; Akhtar Zareen v. The State 2020 PCr.LJ 229; Sajjad Ikram and others v. Sikandar Hayat and others 2016 SCMR 467; Ali Khan Kakar's case 2012 SCMR 334; Ghulam Farid's case 2013 SCMR 16; Gian Singh v. State of Punjab (2012) 10 SCC 303; M.R. Kudva v. State of Andhra Pradesh 2007 R.Cr.D. 236 (SC); Mulaim Singh v. State 1974 Cr.LJ 1397 and People v. Laureano, 8 N.Y. 2D 640 Mar. 26. 1996 rel.

(b) Criminal trial---

----Sentence---Scope and purpose---Aim of imprisoning a person is not merely to dump him in a jail---Aim is equally to reform him during the period of incarceration so that he may be brought back into the society as a peace-loving and law abiding citizen---Logic of imprisonment is not only to incarcerate the accused person within four walls of the jail, the purpose is to reform the convict.

Muhammad Furqn Yousafzai for Petitioner.

Umar Farooq, Muhammad Bashar Naveed, Shakeela Begum and Sardar Ali Raza, A.A.Gs. for the State.

2023 Y L R 456

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

MUHAMMAD ZAMAN alias KOTAY---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 309-M, Criminal Revisions Nos. 63-M and 98-M of 2019, decided on 20th May, 2021.

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

----Ss. 302(b) & 34---Qatl-i-amd and common intention--- Appreciation of evidence--- Benefit of doubt---Contradictory statements--- Scope---Complainant alleged that she was busy in cultivating onions along with her father-in-law and her husband when the accused persons appeared and started firing as a result of which both male members of the complainant's family died at the spot---Occurrence was claimed to have been witnessed by another woman, who had got attracted to the spot on hearing sound of fire shots---Complainant stated in her cross-examination that she had climbed the rooftop of her house after three minutes of the firing and that all the firing had been made in one go---Role of effective firing at the time of lodging FIR was attributed to accused, which was subsequently changed to that of the acquitted co-accused---One of the reasons might be a fact that the accused had been absconding while the co-accused was facing trial---Complainant shifted the effective role of causing death to the accused---Eye-witness, as opposed to the complaint, had stated in her examination-in-chief that she had climbed the rooftop along with the complainant---In the site plan also, both the witnesses were shown at a distance from each other and none of them were shown at the rooftop of their house---No recovery was effected on the indication of accused ---Medical evidence was of no help to the case of prosecution in the given circumstances---Prosecution had failed in proving the case against the accused beyond reasonable doubt---Appeal against acquitted was allowed, in circumstances.

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

----S. 302--- Qatl-i-amd--- Evidence---Scope---Evidence in a case of capital charge must come from unimpeachable source or be supported by strong circumstances that may remove inherent doubt attached to evidence of interested or partisan witness.

Thoba and another v. The State PLD 1963 SC 40 ref.

(c) Criminal trial---

----Evidence---Scope---When a witness is found to be telling lies on an important point having material bearing on culpability of the accused, his evidence could not be attached any credence.

Faridullah Shah and another v. The State 1990 PCr.LJ 1945 rel.

(d) Criminal trial---

----Witness---Witnesses having no respect for truth and being capable of changing their versions as and when it suited them, were worthy of no credence, even if they were found to be natural witnesses.

Muhammad Achar v. The State 1991 PCr.LJ 522 rel.

Sher Muhammad Khan for Appellant.

Haq Nawaz, Asst: A.G. for the State.

Rahimullah and Azim Khan for the Complainant.

2023 Y L R 475

[Peshawar]

Before Ijaz Anwar, J

MUHAMMAD IMRAN and others---Petitioners

Versus

SAJJAD AHMAD JAN and others---Respondents

Writ Petition No. 1165-P of 2022, decided on 15th August, 2022.

Khyber Pakhtunkhwa Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Relationship of landlord and tenant---Proof---Petitioners/tenants were aggrieved of order passed by two Courts below whereby they were evicted from the premises---Plea raised by petitioners/ tenants was that there existed no relationship of landlord tenant between the parties---Validity---Despite stance taken by petitioners/tenants to have purchased suit property by their father, not a single authentic document was placed on record whereas purchase of suit house by respondents/landlords remained unrebutted---Payment of monthly rent was also established and through recording of evidence respondents/landlords duly proved their case---Constitutional petition was neither alternate to right of appeal nor revision, as provided under law---High Court could only rectify and amend a wrong order or a mistaken conclusion of Lower Appellate Court while exercising, its Constitutional jurisdiction under Art. 199 of the Constitution---High Court declined to interfere in concurrent findings of facts by two Courts below---Constitutional petition was dismissed in circumstances.

Ahmad Ali alias Ali Ahmad v. Nasar-ud-Din and another PLD 2009 SC 453; Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45 and Ms. Azra Riaz v. Additional District Judge and others 2021 CLC 623 ref.

Sarfaraz v. Mukhtar Ahmad and others 2016 CLC 48; Dilawar Jan v. Gul Rehman and 5 others PLD 2001 SC 149; Muhammad Lehrasab v. Mst Aqeel-un-Nisa and 5 others 2001 SCMR 338; Abdul Rasheed v. Maqbool Ahmad and others 2011 SCMR 320; Shamin Akhtar v. Muhammad Rashid PLD 1989 SC 575; Mst. Azeemun Nisar Begum v. Mst. Rabia Bibi PLD 1991 SC 242; Muhammad Rafique v. Messrs Habib Bank Ltd. 1994 SCMR 1012 and Mst. Bor Bibi v. Abdul Qadir 1996 SCMR 877 rel.

Misbahullah for Petitioners.

Ahmad Saleem Khan for Respondents.

2023 Y L R 507

[Peshawar (Abbottabad Bench)]

Before Muhammad Ibrahim Khan, J

MUHAMMAD MANZOOR---Petitioner

Versus

Dr. SOHAIL MEHMOOD and 2 others---Respondents

Writ Petition No. 817-A of 2015, decided on 1st March, 2021.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Eviction petition---Restoration of possession--- Scope--- Tenant sought restoration of possession on the ground that the landlord had not utilized the suit property for personal use---Validity---Landlord had remained successful for ejectment of the tenant on two grounds, the first ground was personal bona fide need and the second ground was default in payment of rent for two consecutive months---Landlord had indeed been living abroad since long, who had never come to Pakistan to take an initiative of practicing medicine, for which the required shop was to be utilized---If this alone was the ground, then the tenant could have been entitled to restoration of possession---Even otherwise, landlord had sold out the suit property---Constitutional petition was dismissed.

2014 MLD 869; 2011 YLR 1535 and 2001 SCMR 1698 ref.

Malik Asif Ali for Petitioner.

Asad Khan Jadoon for Respondents.

2023 Y L R 520

[Peshawar (Mingora Bench)]

Before Muhammad Ijaz Khan, J

NASEEB KHAN and others---Petitioners

Versus

The STATE and another---Respondents

Criminal Revision No. 17-M of 2022, decided on 17th October, 2022.

Penal Code (XLV of 1860)---

----S. 494---Illegal marriage---Civil and criminal rights---Stay of proceedings---Principle---Petitioners / accused persons were aggrieved of refusal of Trial Court to stay criminal proceedings till determination of marriage by Family Court---Validity---When Civil Court and Criminal Court were seized of matter and result of one proceedings had a direct bearing on the result and outcome of another, then in such state of affairs, proceedings before Criminal Court had to be halted till the decision of case pending before Civil Court---High Court set aside order passed by Trial Court and proceedings before Criminal Court were adjourned sine die till decision of family suit filed by respondent/complainant for restitution of conjugal rights---Revision was allowed accordingly.

Muhammad Akbar v. The State PLD 1968 SC 281; Abdul Ahad v. Amjad Ali and others PLD 2006 SC 771; Sheikh Ahmad v. Sheikh Muhammad Younis 1971 PCr.LJ 331; Mansharam Madhavadas v. Chetanram Rupchand and others AIR 1945 Sindh 32 and Ikram Ullah Khan v. The State and 5 others 2011 YLR 437 rel.

Hazrat Rehman for Petitioners.

Saeed Ahmad, Astt: A. G and Syed Abdul Haq for Respondents.

2023 Y L R 574

[Peshawar (Mingora Bench)]

Before Muhammad Ijaz Khan, J

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others---Petitioners

Versus

JEHANZEB KHAN (deceased) through legal heirs and others---Respondents

Civil Revision No. 358-M of 2020 with C.M. 1640 of 2020, decided on 18th August, 2022.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.115---Suit for declaration and injunction---Concurrent findings of two Courts below---Scope---Respondents/ plaintiffs filed suit claiming to be owners of the suit property---Trial Court and Lower Appellate Court decreed the suit and appeal respectively in favour of respondents/plaintiffs--- Validity--- Two Courts below concurrently recorded their findings of facts and law---Such findings were perfectly in accordance with available evidence of parties and did not suffer from any misreading or non-reading of evidence, nor the same suffered from any illegalities or material irregularities---High court declined to interfere in judgments in decrease pass by two Courts below---Revision was dismissed in circumstances.

Abdul Rehman and others v. Mst. Allah Wasai and others 2022 SCMR 399; Muhammad Sabil Khan and others v. Saima Inshad and others 2017 CLC 1184; Nasir Ali v. Muhammad Asghar 2022 SCMR 1054; Salamat Ali and others v. Muhammad Din and others PLD 2022 SC 353 and Muhammad Sarwar and others v. Hashmal Khan and others PLD 2022 SC 13 ref.

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

----S. 115---Revisional jurisdiction of High Court, exercise of---Principle---Provision of section 115 C.P.C. empowers High Court to satisfy and reassure itself that order of subordinate Court is within its jurisdiction---Case is one in which Court has to exercise jurisdiction and in exercising jurisdiction Court has not acted illegally or in breach of some provision of law or with material irregularity or some error of procedure in the course of trial, which affected ultimate decision---If High Court is satisfied that such principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in conclusion of subordinate Court upon questions of fact or law.

Mst. Zarsheda v. Nobat Khan PLD 2022 SC 21; Shahbaz Gul and others v. Muhammad Younas Khan and others 2020 SCMR 867 and Khudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others 2002 SCMR 933 rel.

Alam Khan Adenzai, Asst:A.G for Petitioners along with Rashid Ahmad, DSP (Legal) in person.

Abid Hayat for Respondents.

2023 Y L R 619

[Peshawar]

Before Abdul Shakoor, J

Mst. TAJRIAN through legal heirs and 9 others---Petitioners

Versus

SECRETARY, MINISTRY OF AGRICULTURE AND FOREST, ISLAMABAD and 3 others---Respondents

Civil Revision No. 434-P of 2014, decided on 4th March, 2022.

Land Acquisition Act (I of 1894)---

----Ss.9, 18 & 20---Limitation Act (IX of 1908), Art. 17---Suit for possession and recovery of mesne profit---Petitioners claimed that suit property was in his ownership; that only a portion (16 marlas) had been acquired by respondents; that another portion of their property was mortgaged with Bank but after recent redemption of the same portion, petitioners came to know that such portion was illegally occupied by the respondents---Suit was concurrently dismissed---Validity---Disputed portion of property was included in notification issued under the Land Acquisition Act, 1894 for the College of the University---Petitioners had not filed objection petition at the relevant time against the said acquisition before Collector Land Acquisition---Respondents acquired the subject property in 1957 after observing all legal requirements and were using the same since said acquisition---Petitioners brought the suit for possession after more than lapse of 40 years, thus the suit was barred by time---Revision petition was dismissed accord-ingly.

Fida Gul for Petitioners.

Qazi Babar Irshad, D.A.G. for Respondent No.1.

Ms. Shakeela Begum, A.A.G. for Provincial Government.

2023 Y L R 634

[Peshawar ((Abbottabad Bench)]

Before Mohammad Ibrahim Khan, J

HAMID ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail No. 846-A of 2020, decided on 16th October, 2020.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd and common intention---Bail, refusal of---Prompt FIR---Motive not explained---Scope---Accused, at the instigation of another, was alleged to have fired at the victim resulting in his death---Accused was directly and by name charged with a specific role---Reporting the incident to the local police was not delayed---Witnesses of the alleged occurrence were also duly shown/cited in the FIR---Presence of accused at the place of occurrence was not denied---Crime empties were also recovered from the place of occurrence---At the moment, there seemed no ill will or false implication on the part of the complainant as motive for offence had not been explained in the FIR---Record available on file prima facie directly connected the accused with the commission of offence which squarely fell within the prohibitory limb of S. 497, Cr.P.C.---Bail petition was dismissed.

Muhammad Fiaz alias Bhoora v. The State 2015 SCMR 655 and 1996 SCMR 1845 rel.

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

----S.497---Bail---Tentative assessment---Scope---Only tentative assessment of record is required at bail stage and deeper appreciation is not permissible. [p. 636] C

Muhammad Masood ur Rehman Tanoli for Petitioner.

Raja Muhammad Zubair, A.A.G. for the State.

Atif Ali Jadoon for the Complainant.

2023 Y L R 653

[Peshawar]

Before Ijaz Anwar and Fazal Subhan, JJ

MUHAMMAD AFZAL CHAUDHRY and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Chairman Federal Land Commission, Islamabad and 7 others---Respondents

Writ Petitions Nos. 1663-P and 1664-P of 2022, with IR, decided on 10th August, 2022.

Evacuee Trust Board (Management and Disposal) Act (XIII of 1975)---

----S. 7---Evacuee Trust Property---Declaration--- Petitioners assailed declaration issued by Chairman regarding property in question as Evacuee Trust Property---Validity---During proceedings before Chairman of the Board, petitioners did not produce any proof of their entitlement of allegedly abondand lands in Azad Jammu and Kashmir---Petitioners also did not produce relevant documents in respect of claim or its verification---Documentary proof of ownership was not brought before Chairman of Board and in revenue record property in question was in possession of tenants and under the management of Evacuee Trust Property Board since 1947---No other record was produced to prove that property in question was available in compensation pool to be allotted to petitioners---On the basis of material available on record, Chairman of the Board declared the suit property to be a Evacuee Trust Property attached to religious and charitable purpose---High Court declined to interfere in the matter, as there was no illegality or jurisdiction defect, nor there was misreading or non-reading of relevant record by the authorities below--- Constitutional petition was dismissed in circumstances.

C.As. Nos.744 and 745 of 2014 and District Evacuee Trust Committee v. Mushraf Khan and 3 others 1989 SCMR 1636 rel.

Amin-ur-Rehman Yusufzai for Petitioners.

Muhammad Asghar Khan Kundi, D.A.G. and Aimal Khan Barkandi for Respondents.

2023 Y L R 693

[Peshawar (D.I. Khan Bench)]

Before Muhammad Faheem Wali and Shahid Khan, JJ

SARWAR KHAN---Appellant

Versus

ABDUL WAHAB and another---Respondents

Criminal Appeal No. 29-D of 2018, decided on 28th September, 2022.

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

----S. 302---Criminal Procedure Code (V of 1898), S.417 (2-A)---Qatl-i-amd---Appreciation of evidence---Appeal against acquittal---Presumption---Benefit of doubt--- Scope--- Complainant was aggrieved of acquittal of accused on the plea that co-accused was convicted and sentenced on the same evidence---Validity---Evidence collected during investigation and furnished during trial was silent about presence of accused all or around scene of occurrence---Accused did not participate in commission of offence and his involvement in incident with specific role was not substantiated---Trial Court gave accused benefit of doubt not as a matter of grace but as a matter of right---Benefit of doubt was not grace but right of accused; it was not necessary that there should be many circumstances creating doubts---Even a single circumstance creating reasonable doubt in a prudent mind about guilt of accused made him entitled to its benefit not as a matter of grace and concession but as a matter of right---High Court declined to interfere in acquittal of accused as there was no illegality, material irregularity or jurisdiction defect in judgment passed by Trial Court---Appeal was dismissed in circumstances.

Muhammad Akram v. State 2009 SCMR 230 rel.

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

----S. 417---Appeal against acquittal---Presumption---Order of acquittal cannot be interfered with because presumption of innocence of accused is further strengthened by acquittal---Appeal against judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so---If judgment of acquittal is clearly unreasonable, only then it is a compelling reason for interference.

(c) Criminal trial---

----Appreciation of evidence---View favoring accused---Scope---If two views are possible on evidence adduced in case, one pointing to guilt of accused and the other to his innocence, view which is favorable to accused to be adopted.

(d) Administration of justice---

----Miscarriage of justice, which may arise from acquittal of guilty is less than convicting an innocent.

Sheikh Iftikhar-ul-Haq for Appellant.

Shah Shujaullah for Respondent No.1.

Adnan Ali, Asstt: A.G. for the State.

2023 Y L R 770

[Peshawar]

Before Muhammad Naeem Anwar, J

MUSTAJAB UL HASSAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 346-P of 2021, decided on 3rd August, 2021.

Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 (XXXI of 2019)---

----Ss. 34-A & 34-B---Articles connected with narcotics, procedure for making confiscation---Superdari of vehicle used in transportation of narcotics---Application for superdari of vehicle was dismissed on the ground that the motorcar in question was involved in smuggling / transportation of huge quantity of narcotics---Scope---Record revealed that the crime was reported within a period of ten days by contending therein that he was the purchaser of vehicle in question and there was no other rival claimant of it---First proviso of sub-clause (2) of S. 34-B made it abundantly clear that no such property shall be confiscated unless within one month from the date of freezing or seizer any claimant thereto was given an opportunity of being heard along with evidence if any pertaining to his claim---Record of the case promulgated that neither Investigating Officer of criminal case had collected any evidence nor issued any notice within a period of one month after seizer of vehicle in question nor the trial court had made any effort in consonance with the provision of Ss.34-A & 34-B of Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019---First proviso of sub-clause (2) of S.34-B of the Act was not limited to the extent of owner because the legislature had intentionally used the word "any person" instead of "registered owner" in the said section so that the person might be the registered owner or purchaser of vehicle through any instrument but had not been registered as its owner yet, or any person having any interest or claim thereto may approach to the court to entitle to be put on notice, in order to prove his claim, if any, through evidence and till then no such property would be confiscated---Appellant had submitted his application for superdari of vehicle in question within a period of ten days from the date of crime report---Of course, appellant had got a claim regarding the property in question and was required to be served with a notice prior to submission of complete challan before the court by the Seizing Officer/Investigating Officer--- If during investigation, Investigating Officer of the case had not served him with a notice, as required, the court after submission of complete challan was required to serve the appellant with a notice about his claim pertaining to the motorcar in question and by not doing so, neither the Seizing Officer nor the Court had complied with the legal requirements/formalities as provided in S. 34-B of the Act---Proviso of S. 34-A of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 and that of S. 32 of Control of Narcotic Substances Act, 1997, was the same which provided that property used in an offence under the Act could only be confiscated when it was established that the owner of the vehicle knew that the offence was or being committed---When appellant claimed himself to be owner was entitled to be given a notice by the Seizing Officer or by the Court for providing him an opportunity of being heard pertaining to his claim clinched with the vehicle in question, by not doing so the trial Court had committed an illegality---Appeal to the extent of confiscation of vehicle was allowed by setting aside the impugned judgment and the case was remanded to the Trial Court to decide it after issuing a notice to the appellant in view of proviso to sub-clause (2) of S. 34-A & first proviso to sub-clause (2) of S. 34-B of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019, in circumstances.

Amjad Ali Khan v. The State and others PLD 2020 SC 357; Aamir Khalil v. Government of Pakistan through Director General, ANF Rawalpindi and 5 others PLD 2004 Pesh. 251; Abdus Salam v. State 2003 SCMR 246; Allah Ditta v. The State 2010 SCMR 1181 and Amjad Ali Khan v. The State and others PLD 2020 SC 299 rel.

Ali Azim Afridi for Appellant.

Malik Akhtar Hussain, A.A.G. for the State.

2023 Y L R 804

[Peshawar]

Before Rooh-ul-Amin Khan and Ijaz Anwar, JJ

MIR AKBAR---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 115-P of 2018, decided on 12th January, 2022.

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

----S. 302(b)---Qatl-e-Amd---Appreciation of evidence---Sentence, reduction in---Ocular account---Scope---Accused was charged for committing murder of the deceased by firing---Motive behind the occurrence was a dispute over debt between the deceased and the accused---Both the eye-witnesses had been subjected to cross-examination by the defence but nothing beneficial could be extracted from their mouths---Said witnesses remained stuck to their stance and corroborated each other on all material aspects of the incident, such as the day, date, time and place of occurrence as well as the mode and manner in which the accused committed the murder of the deceased---Eye-witnesses were also consistent on the motive part of the case---Being a broad day light occurrence and accused already known to the eye-witnesses as they were co-villagers inter-se, question of mistaken identity did not arise---Similarly, the promptly lodged report within 30 minutes eliminated the possibility of consultation and deliberation on the part of the complainant in charging the accused---Eye-witnesses had directly and singularly charged the accused for murder of the deceased with a pistol---Nothing had been brought from their mouths in cross-examination so as to question their presence at the spot at the time of occurrence---Similarly, there existed no reason, much less plausible to suggest false implication of the accused by the eye-witnesses by substituting the real culprits---Ocular account of said two witnesses that the accused being sole accused in the case had made fire shots on the deceased---Both the said witnesses had proved their presence at the spot as their evidence were natural, reliable and did not suffer from any serious or material contradictions, therefore, it could not be doubted at all---Circumstances established that the prosecution had proved its case against the accused--- However, his sentence was reduced from life imprisonment to eight years rigorous imprisonment, in circumstances---Appeal 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---Accused was charged for committing murder of the deceased by firing---Motive behind the occurrence was a dispute over debt between the deceased and the accused---Record showed that any pre-meditation for committing murder of deceased was missing whereas, it was proved from the case of prosecution that accused had made fire shots in the heat of passion---Entire prosecution evidence and facts narrated in FIR would go to show that during sudden quarrel, the accused drew his pistol and fired at the deceased---Though the deceased had received three firearm inlet wounds at the hand of the accused but the number of injuries inflicted on the deceased would not and could not be decisive factor to decide that the assailant had acted in a cruel manner---Conviction of the accused was converted from S.302(b), P.P.C. to S. 302(c), P.P.C. and his sentence was reduced from life imprisonment to eight years rigorous imprisonment---Circumstance established that the prosecution had proved its case against the accused---However, sentence was reduced from life imprisonment to eight years rigorous imprisonment---Appeal was dismissed with said modification in sentence.

Shabbir Hussain Gigyani for Appellant.

Muhammad Nisar, A.A.G. for the State.

Zahir Shah Afridi for the Complainant.

2023 Y L R 816

[Peshawar]

Before Ijaz Anwar, J

HAQ NAWAZ---Petitioner

Versus

ZEBA RASHEED and others---Respondents

Writ Petition No. 4928-P of 2021, decided on 21st March, 2022.

Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Visitation right of father---Principle---Petitioner was father of minor daughter who was denied the right of visitation---Family Court also returned the gift brought by father for his daughter---Order passed by Family Court was maintained by Lower Appellate Court---Validity---Such was inherent right of parents to have visitation rights with his/her children and depriving any of the spouse of such visitation rights would have an effect on the personality of the child/minor---Minor was to carry parentage with her throughout her life and such relation would remain throughout as neither Islam nor land laws allowed such renunciation---High Court did not appreciate order of Family Court returning the gift given by the petitioner---High Court directed Family Court to pass an interim order allowing visitation rights to petitioner and thereafter to chalk out a comprehensive plan pertaining to the visitation rights and other obligations, resultantly orders passed by two Courts below were set aside---Constitutional petition was allowed accordingly.

Mst. Abeera Khan v. Adnan Jamel and another 2019 CLC 1478; Mst. Muneeba Raheel v. Raheel Taufiq Feroz and another 2020 CLC 1353; Mst. Ayesha Abdul Maleek v. Additional District Judge, Sahiwal and 2 others 2020 YLR 401; Mst. Hira v. 7th Additional Sessions Judge, Hyderabad and another 2019 MLD 804; Mrs. Shaukat Khalid v. Additional District Judge, Rawalpindi 1989 CLC 1377; Mst. Isbah Rashif v. Additional District Judge, Islamabad-West and others 2021 CLC 1089 and Shahida Adnan v. Additional District Judge and others 2021 YLR 1915 rel.

Mst. Madeeha Younus v. Imran Ahmed 2018 SCMR 1991 fol.

Muhammad Tariq Afridi for Petitioner.

Iftikhar Ahmad Siddiqui for Respondents.

2023 Y L R 838

[Peshawar (Mingora Bench)]

Before Muhammad Ijaz Khan, J

ZAIDAR KHAN and others---Appellants

Versus

FAZAL KARIM and others---Respondents

Civil Revision No. 154-M of 2020 with C.M. No. 697-M of 2020, decided on 22nd September, 2022.

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

----Arts. 117 & 120---Plaint---Onus to prove---Scope---Statutory obligation of plaintiff to prove his own case on the basis of his own evidence---Plaintiff cannot deserve any benefit from lapses or weaknesses of defendant's case.

Muhammad Latif v. Bashir Ahmed and others 2004 CLC 1010; Abdul Waheed v. Muhammad Bilal PLD 2005 Pesh. 19 and General Manager, Azad Kashmir Logging Sawmills Corporation Muzaffarabad v. Abdul Rehman and 2 others 2013 CLC 1473 rel.

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

----S. 42---Civil Procedure Code (V of 1908), S. 115---Suit for declaration---Revisional jurisdiction of High Court---Scope---Concurrent findings of two Courts below---Substituting of findings---Petitioners/plaintiffs were aggrieved of judgments and decrees passed by two Courts below dismissing their suit and appeal respectively--- Validity--- Two Courts below concurrently recorded their findings of facts and law, which were in accordance with available evidence of parties---Findings of two Courts did not suffer from misreading or non-reading of evidence, nor the same suffered from any illegality or material irregularity, warranting interference of High Court in revisional jurisdiction under S.115, C.P.C.---Revisional Court could not substitute findings of Courts below with its own merely for the reason that its findings were more plausible than that of the Courts below---High Court declined to interfere in judgments and decrees passed by two Courts below, as the same were neither result of misreading or non-reading of evidence nor petitioners / plaintiffs could point out any jurisdictional defect or material irregularities---Revision was dismissed in circumstances.

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; Haji Allah Bakhsh v. Abdullah Khan and 4 others 2001 SCMR 363; Shamshad v. Arif Ashraf Khan and others 2010 SCMR 473; Muhammad Rasheed v. Mst. Saeeda Bano and 4 others 2014 CLC 990; Nasir Ali v. Muhammad Asghar 2022 SCMR 1054; Salamat Ali and others v. Muhammad Din and others PLD 2022 SC 353; Muhammad Sarwar and others v. Hashmal Khan and others PLD 2022 SC 13; Mst. Zarsheda v. Nobat Khan PLD 2022 SC 21; Shahbaz Gul and others v. Muhammad Younas Khan and others 2020 SCMR 867 and Khudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others 2022 SCMR 933 rel.

Said Karim Shalmani for Petitioners.

Respondents are not represented being a motion case.

2023 Y L R 868

[Peshawar (Bannu Bench)]

Before S. M. Attique Shah and Sahibzada Asadullah, JJ

IRFANULLAH---Appellant

Versus

The STATE and 2 others---Respondents

Criminal Appeal No. 131-B with Murder Reference No. 02-B of 2021, decided on 10th May, 2022.

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

----Ss. 302(a) & 353---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, possession of unlicensed arms---Appreciation of evidence---Matter was reported to the police with promptitude---Scope---Accused was charged for committing murder of on duty Police Official by firing---Matter was reported to the local police at 03.15 p.m. and it was agitated by the defence that when the report was made after the medical examination then an inference could be drawn that the matter was investigated and later on, after consultation and deliberation, the accused was charged for the death of the deceased---Record showed that both the witnesses i.e. the doctor and the scribe categorically admitted that at the same time, the treatment of the injured was in progress and the Police Official was busy in drafting the murasila---Scribe when appeared before the Trial Court, during his cross-examination, stated that after drafting the murasila and preparation of the injury sheet, the injured was referred to the doctor for his medical examination, but the same alone was not sufficient to discard the report of the deceased then injured, as the injured had no mala fide to falsely implicate the accused for the injuries caused to him---In criminal cases, first the report is made, then the injury sheet is prepared and thereafter, the injured is referred to the doctor for his examination, but said explanation of the scribe could only and only be considered a procedural lapse, which could not overweigh the confidence inspiring report of the complainant---Both the witnesses walked with bona fide had they any mala fide then they would have told the story in the manner that would suit the prosecution---Circumstances established that the prosecution had proved its case against the accused but the accused deserved to be convicted under S.302(c), P.P.C. instead of S.302(a), P.P.C.---Appeal was partially allowed by setting aside the conviction and sentence awarded under S.302(a), P.P.C. and convict the accused under S. 302(c), P.P.C. to fifteen years rigorous imprisonment---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(a) & 353---Khyber Pakhtun-khwa Arms Act (XXIII of 2013), S. 15---Qanun-e-Shahadat (10 of 1984), Art.46---Qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, possession of unlicensed arms---Appreciation of evidence---Dying declaration--- Scope--- Accused was charged for committing murder of on duty Police Official by firing---Record showed that the Medical Officer, who provided first aid to the injured at the time of his arrival to the hospital, confirmed that while examining the injured he was capable to talk and the same had been mentioned in the Medico-Legal Certificate---Said Medical Officer was asked as to whether any certificate was provided by him to the local police and as to whether any request was made by the local police in that respect, the Medical Officer replied in affirmative and stated that a written request was made which was duly endorsed by him---Said witness further stated that it was he who opined to the local police regarding the orientation and capability of the deceased then injured to talk---As per record, there was no denial to the fact that the deceased received firearm injuries on the vital parts of his body and that the major organs of his body were injured, but it could not be ignored that the deceased then injured survived for three long days and thereafter breathed his last in the hospital---Attending circumstances of the present case left no ambiguity in mind that the injured was in senses and was fully oriented in time and space---Certificate asked by the police and report tendered by the doctor left no ambiguity that the deceased was capable to talk---Circumstances established that the prosecution had proved its case against the accused but the accused deserved to be convicted under S. 302(c), P.P.C. instead of S. 302(a), P.P.C.---Appeal was partially allowed by setting aside the conviction and the sentence awarded under S. 302(a), P.P.C. and convicted the accused under S. 302(c), P.P.C. to fifteen years rigorous imprisonment---Appeal was dismissed with said modification in sentence.

Farmanullah v. Qadeem Khan and another 2001 SCMR 1474 rel.

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

----Ss. 302(a) & 353---Khyber Pakhtun-khwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, possession of unlicensed arms--- Appreciation of evidence---Recovery of crime empties and weapon of offence---Reliance---Scope---Accused was charged for committing murder of on duty Police Official by firing---Record showed that the Investigating Officer dispatched the crime empties collected from the spot along with .30 bore pistol recovered from the possession of the accused, to the firearms expert to ascertain as to whether the collected empties were fired from the recovered pistol---Fire-arms Expert after chemical analysis found that the same were fired from the recovered pistol and in that respect a positive report was submitted---Number of empties collected from the spot confirmed the stance of the complainant as the deceased was having two entry wounds on his abdomen---Safe custody right from collecting the empties from the spot and its dispatch with the recovered weapon to the Firearms Expert had been proved on record---Investigating Officer recorded the statement of all the concerned Police Officials including Muharrir of the concerned police station in whose custody the articles were lying and the Police Official who took the same to the laboratory, they were produced before the Court and their statements were recorded---Both the witnesses were thoroughly examined on material aspects of the case, but they remained consistent throughout---Positive laboratory report was a circumstance that supported the statement of the complainant to a greater extent---Laboratory report, in itself, was not sufficient for convicting an accused charged, but equally true that it could be considered a circumstance in aid to the collected evidence---In the present case, it lurked no doubt that the report of the complainant was fully supported by the positive laboratory report---Circumstances established that the prosecution had proved its case against the accused but the accused deserved to be convicted under S. 302(c), P.P.C. instead of S. 302(a), P.P.C.---Appeal was allowed partially by setting aside the conviction and sentence awarded under S. 302(a), P.P.C. and convict the accused under S. 302(c), P.P.C. to fifteen years rigorous imprisonment---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(a) & 353---Khyber Pakhtun-khwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, possession of unlicensed arms---Appreciation of evidence---Medical evidence---Scope---Accused was charged for committing murder of on duty Police Official by firing---Record showed that the number of injuries on person of the deceased and the empties collected from the spot supported the stance of the complainant---Accused made two fire shots and the deceased received the two, so the medical evidence fully supported the stance of the complainant---Medical evidence was confirmatory in nature which alone was not sufficient for the conviction of an accused charged, but equally true that when the prosecution otherwise succeeded in bringing on record strong evidence in its favour then medical evidence had the key role to play and the present case was no exception---Circumstances established that the prosecution had proved its case against the accused but the accused was not deserved to be convicted under S. 302(c), P.P.C. instead of S.302(a), P.P.C.---Appeal was partially allowed by setting aside the conviction and sentence awarded under S.302(a), P.P.C. and sentenced the accused under S. 302(c), P.P.C. to fifteen years rigorous imprisonment---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(a) & 353---Khyber Pakhtun-khwa Arms Act (XXIII of 2013 ), S. 15---Qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, possession of unlicensed arms---Appreciation of evidence---Motive was not proved---Scope---Accused was charged for committing murder of on duty Police Official by firing---Allegedly, the prosecution could not succeed in proving the motive, as no independent witness was examined by the Investigating Officer in that respect---No witness came forward to tell that there was a previous ill-will between the two and that it was because of the active connivance of the deceased that the accused was booked in several criminal cases, but it could not forget that the Investigating Officer placed on file copies of different FIRs, where the accused was charged in narcotic cases---As the accused was convicted in all the cases he was charged in, so it was confirmed that there was bitterness between the two which led to the death of the deceased---Absence or weakness of motive, by itself, was not sufficient to dislodge the case of the prosecution, rather the same could play a role in persuading the mind of the Court for awarding lesser sentence---Circumstances established that the prosecution had proved its case against the accused but the accused did not deserve to be convicted under S. 302(c), P.P.C. instead of S. 302(a), P.P.C.---Appeal was partially allowed and the accused was convicted under S.302(a), P.P.C. and sentenced to fifteen years rigorous imprisonment---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(a) & 353---Khyber Pakhtun-khwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, possession of unlicensed arms---Appreciation of evidence---Site plan and report of complainant---Conflict---Accused was charged for committing murder of on duty Police Official by firing---Report of the complainant had twisted the incident---Conflict between the site plan and the report had created the atmosphere of uncertainty--- Mystery prevailed throughout that had created an atmosphere of confusion regarding the exact place and the exact mode of the incident---Report told that soon after reaching to the village on his motorbike, the accused on seeing the deceased fired at him---After receiving firearm injuries, the injured was shifted to the hospital by people of the locality---If it was accepted to what the complainant stated then the blood and empties should have been recovered from the thoroughfare, but these were not---Site plan depicted that the incident occurred inside the maize crop which was of man's height---Spot field was surrounded by many more fields all having maize crops---While preparing the site plan, the Investigating Officer noted that an area of 6×6 feet in the maize crop was trampled as the two had struggled before the deceased was fired at---Said fact was for the prosecution to tell that what brought the two inside the maize crop and that for what purpose---Despite efforts the answer could not be found---Complainant while reporting the matter suppressed the real facts---Had the Investigating Officer recorded statements of the people who shifted the deceased then injured to the hospital, the mystery would have been resolved, but his lack of interest had added much in creating a state of uncertainty which despite efforts could not be resolved---Recoveries effected from inside the field confirmed that the deceased received firearm injuries in the field---However, it was a begging question that what led the two inside the field and that why they engaged in physical struggle which trampled the crop---Said particular aspect of the case led to hold that both the deceased and the accused came forward with twisted facts and as such if on one side the accused was responsible for the death of the deceased then on the other the conduct of the deceased was not above board---Circumstances established that the prosecution had proved its case against the accused but the accused did not deserve to be convicted under S. 302(c), P.P.C., instead of S.302(a), P.P.C.---Appeal was partially allowed by setting aside the conviction and sentence awarded under S. 302(a), P.P.C. and convict the accused under S. 302(c), P.P.C. to fifteen years rigorous imprisonment---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(a) & 353---Khyber Pakhtun-khwa Arms Act (XXIII of 2013 ), S. 15---Qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, possession of unlicensed arms--- Appreciation of evidence---Sentence, reduction in---Accused was charged for committing murder of on duty Police Official by firing---Both the sides suppressed the real facts and consciously attempted to create an atmosphere of uncertainty---Accused deserved to be punished under S. 302(c), P.P.C. and not under S.302(a), P.P.C.---Appeal was partially allowed and the accused was convicted under S. 302(a), P.P.C. and sentenced to fifteen years rigorous imprisonment---Appeal was dismissed with said modification in sentence.

Abdur Rahim v. The State 2021 YLR Note 139 rel.

Muhammad Rashid Khan Dhirma Khel for Appellant.

Sultan Mahmood Khan for Respondents.

Sardar Muhammad Asif, Asstt: A.G. for the State.

2023 Y L R 935

[Peshawar ((Abbottabad Bench)]

Before Kamran Hayat Miankhel, J

INAM SHAH---Petitioner

Versus

SADDIQ JAN (daughter)---Respondent

Civil Revision No. 253-A of 2020, decided on 18th October, 2022.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), Ss. 2(ii), 115 & O.VII, R.11---Suit for declaration and injunction--- Decree--- Rejecting of plaint---Petitioner was aggrieved of execution proceedings initiated on the basis of decree passed under O. VII, R. 11, C.P.C.---Plea raised by petitioner was that such decree was only meant for appeal and not for execution---Rejection of plaint was also decree under S.2(ii), C.P.C. as there was formal expression of adjudication conclusively determining rights of parties and was capable of execution---High Court declined to interfere in order passed by Lower Appellate Court---Revision was dismissed accordingly.

Alladino v. Muhammad Shah 2001 SCMR 286 and Noor Rahman v. Muhammad Azeem Bacha 2010 YLR 2469 rel.

Mojahid Khan for Petitioner.

Nasir Mehmood for Respondent.

2023 Y L R 966

[Peshawar]

Before Lal Jan Khattak and Ishtiaq Ibrahim, JJ

ASIF ULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 589-P of 2020, decided on 29th March, 2022.

(a) 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---Benefit of doubt---Withholding material evidence---Scope---Prosecution case was that 17335 grams of charas in 15 packets was recovered from the petrol tank of the vehicle driven by the accused---Damaging aspect of the case for the prosecution was that the official who had taken the 15 representative samples to the Forensic Science Laboratory from the malkhana had not been produced by the prosecution---Though Moharrar of the police station stated in his cross-examination that the representative samples were handed over to Police Constable for taking them to Forensic Science Laboratory but as Police Constable did appear before the court, thus, mere mentioning name of the carrier would not absolve the prosecution from establishing that from the police malkhana to Forensic Science Laboratory no one had interfered with the samples---Safe transmission of the samples to Forensic Science Laboratory had not been proved---Besides, no application on behalf of the complainant or the Investigation Officer for seeking opinion of the Forensic Science Laboratory whether the representative samples were charas or otherwise was available on the case file---Said fact was admitted before the Trial Court by the Seizing Officer---Circumstances established that the prosecution failed to prove its charge against the accused through worth reliable evidence---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Contradictions in the statement of witnesses---Scope---Prosecution case was that 17335 grams of charas in 15 packets was recovered from the petrol tank of the vehicle driven by the accused---Record showed that there were glaring contradictions in the evidence of the witnesses---Investigating Officer had stated that a Constable had searched the vehicle whereas complainant of the case said that he himself and none else had searched the vehicle---Investigating Officer said that inside the petrol tank of the vehicle there were three cavities whereas the complainant said that there was only one cavity in the tank---Circumstances established that the prosecution failed to prove its charge against the accused through worth reliable evidence---Appeal against conviction was allowed in circumstances.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that 17335 grams of charas in 15 packets was recovered from the petrol tank of the vehicle driven by the accused---No material on the case file to show as to how the fuel tank was opened and how slabs of the narcotics were taken out of it---Neck of the petrol tank had a radious of up to 02 inch whereas slabs of charas normally were in rectangles shapes which neither could be pushed in same form into a fuel tank nor could be taken out of it unless were broken or the fuel tank was dismantled which was not in the present case as there was no evidence to that effect---Circumstances established that the prosecution failed to prove its charge against the accused through worth reliable evidence---Appeal against conviction was allowed, in circumstances.

Noor Alam Khan for Appellant.

Niaz Muhammad, A.A.G. for the State.

2023 Y L R 999

[Peshawar ((Abbottabad Bench)]

Before Fazal Subhan, J

TAHIR MEHMOOD KHAN---Petitioner

Versus

MUHAMMAD SALEEM and 2 others---Respondents

Civil Revision No. 315 of 2015, decided on 11th October, 2022.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)-

----Ss.13 & 16---Civil Procedure Code (V of 1908), S.115---Possession through pre-emption---Talb---Proof---Waiver of right of pre-emption---Joint notice---Effect---Petitioner/plaintiff/pre-emptor failed to prove Talb-i-Muwathibatand Talb-i-Ishaad, therefore, suit and appeal were dismissed by Trial Court and Lower Appellate Court respectively---Validity---Petitioner/ plaintiff / pre-emptor was unable to prove Talb-i-Muwathibat within four corners of S. 13 of Khyber Pakhtunkhwa Pre-emption Act, 1987, who was required to prove that as soon as he got information of sale, there and then in the same sitting or Majlis, he announced that he would exercise right of pre-emption---Provision of S. 13 of Khyber Pakhtunkhwa Pre-emption Act, 1987 related to demands of Talab, which were pre-requisites to enforce right of pre-emption---Petitioner/plaintiff/ pre-emptor did not send original notices to respondents / defendants / vendees and after preparing one original notice three copies were prepared and were jointly sent to respondents/defendants/vendees at one address whereas all were residing at different places---Non-sending of original notices to each of respondents/ defendants / vendees, and sending photocopies on the same address amounted to non-performance of Talb-i-Ishhadand suit for pre-emption could alone be dismissed on such score---Neither petitioner / plaintiff / preemptor proved requirements of Talb-i-Muwathibat nor had issued notice of Talb-i-Ishhadin accordance with law---Petitioner / plaintiff / pre-emptor was already in knowledge of transfer of land on18-04-2009 and his assertion that he was informed about transfer of land through suit mutations on 13-08-2009 was fake and fabricated---Suit was hit by S. 16 of Khyber Pakhtunkhwa Pre-emption Act, 1987---High Court declined to interfere in concurrent judgments and decrees passed by two Courts below---Revision was dismissed circumstances.

Muhammad Ayub Awan for Petitioner.

Imtiaz Khan Jadoon for Respondents.

2023 Y L R 1027

[Peshawar]

Before S M Attique Shah, J

SADIQ---Petitioner

Versus

HIZBULLAH and another---Respondents

Criminal Miscellaneous Bail Application No. 771-P of 2021, decided on 17th May, 2021.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd and common intention---Bail, refusal of---Medical ground---Scope---Accused sought bail on medical grounds after dismissal of his bail application on merits---Accused had not sought bail on medical ground despite availability of such ground rather he had waited for the fate of his bail petitions so filed on merit; then, he applied for his release on medical ground in second round, therefore, the petition was not maintainable---Ailment of the accused was not as such, which was either hazardous to his life or the same could not be treated from the jail, therefore, the discretion so available under the law could not be exercised in his favour---Bail application was dismissed, in circumstances.

Shabbir Hussain Gigyani for Petitioner.

Muhammad Sohail, A.A.G. for the State

Qaiser Zaman for the Complainant.

2023 Y L R 1039

[Peshawar (Bannu Bench)]

Before Sahibzada Asadullah and Muhammad Faheem Wali, JJ

NOOR ULLAH---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 122-B of 2021, decided on 17th August, 2022.

(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 brother by firing as a result of domestic dispute---Occurrence allegedly took place in a Market, however, unfortunately no one amongst the shopkeepers was cited as witness to have seen the occurrence---Although the Medical Officer while appearing in the witness box stated that the dead body was brought and identified by two persons, however, only one person appeared before the Trial Court, but he did not utter a single word regarding transportation of the dead body from the spot to the hospital---Other witness was not produced before the Court---Even the complainant SHO while deposing before the Court, was unable to mention the name of the person who allegedly informed him about the occurrence on mobile phone, nor he mentioned cell phone number of the alleged informer---Complainant was also unable to tell as to whether the dead body was brought to the hospital by relatives of the deceased or private persons---Said witness stated that when he reached to the emergency room of hospital, only medical staff was present with the dead body---Even complainant was unable to give the name of the person who identified the dead body before him---Said witness was also unaware about the wounds on the dead body---Said witness clearly admitted that no private person as well as the relative of the deceased had come forward for report---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Unseen occurrence--- Scope--- Accused was charged for committing murder of his brother by firing as a result of domestic dispute---Record showed that surprisingly the spot was pointed out to the Investigating Officer by nearby shopkeepers, however, as per deposition of that witness those shopkeepers were reluctant to record their statements---Investigating Officer stated that he had not even mentioned their names in the investigation proceedings---Said witness stated that widow and aunt of the deceased were not the eye-witness to the occurrence and the widow and aunt of the deceased were not present at the time of spot inspection---Said witness further stated that he had not mentioned as to how the widow and aunt of the deceased came to know about the incident---Besides, that witness prepared site plan, took into possession blood stains through cotton and an empty of .30 bore, recorded statements of witnesses as well as identifier and received blood stained garments of the deceased at the spot produced by police constable---Shopkeepers were the star witnesses of the occurrence, however, none amongst them came forward to become a witness---High Court observed that in that newly merged area, people avoid to become a witness in such like cases, however, it was equally true that law did not accept such type of an excuse---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of crime empty from the place of occurrence--- Scope--- Accused was charged for committing murder of his brother by firing as a result of domestic dispute---Record transpired that although an empty of .30 bore was recovered during the spot inspection and as per statement of concerned Medical Officer, an entrance wound on the left side of the neck just behind the ear and exit wound on the forehead just above the right eye was observed---However, since no recovery had been effected from the accused, therefore, the alleged recovery and the postmortem report became immaterial, as such piece of evidence was a corroboratory evidence which did not identify the assailant, especially when the site plan was prepared by the Investigating Officer on his own observation---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Motive was not proved---Scope---Accused was charged for committing murder of his brother by firing as a result of domestic dispute---Prosecution did not succeed in establishing the alleged motive---As the parties were not in a blood-feud, so in such eventuality the importance of the alleged motive gained much weight and once alleged, the prosecution was under the bounden duty to prove the same---High Court observed that absence or weakness of motive would not demolish the prosecution case, but the same principle did not apply here, as the motive was stated to be a dispute between the deceased and his father, so the prosecution was to prove the same in all circumstances--- Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

Hakim Ali v. The State 1971 SCMR 432; Amin Ullah v. The State PLD 1976 SC 629; Muhammad Sadiq v. Muhammad Sarwar 1997 SCMR 214; Noor Muhammad v. The State and another 2010 SCMR 997 and Amin Ali and another v. The State 2011 SCMR 323 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---Single doubt if found reasonable would be sufficient to acquit the accused, giving him/them benefit of doubt because bundle of doubts were not required to extend the legal benefit to the accused.

Riaz Masih alias Mithoo v. State 1995 SCMR 1730 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

Shahid Naseem Khan Chamkani for Appellant.

Saif ur Rehman Khan, A.A.G. for the State

Sawal Nazir for Respondent

2023 Y L R 1054

[Peshawar]

Before Rooh ul Amin Khan and Syed Arshad Ali Shah, JJ

SHAHID MURAD and another---Appellants

Versus

The STATE and 2 others---Respondents

Criminal Appeal No. 1450-P of 2019, decided on 27th January, 2022.

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

----Ss. 302, 324, 449 & 337-F(v)---Qatl-i-amd, attempt to commit qatl-i-amd, house-trespass in order to commit offence punishable with death, ghayr-jaifah-hashimah--- Appreciation of evidence---Ocular account---Scope---Accused were charged for committing murder of two persons of the complainant party and injuring one person by firing, complainant party made firing in defence, due to which one person of the accused party was hit and died---Ocular account of the incident had been furnished by complainant and injured---Complainant reiterated the whole story of the case as mentioned in the FIR---Said witness had been subjected to lengthy and taxing cross-examination through skilful hand, but nothing favourable to defence could be extracted from his mouth while answering the questions of defence---Complainant remained stuck to his stance taken in the FIR and site plan---Complainant correctly pointed out the places of the deceased, injured and the accused at the time of occurrence---Record showed that the occurrence had taken place inside the house of the complainant at 08:00 p.m. but in the recent days marriage of injured had taken place in the house and the prosecution had brought ample evidence on file about availability of plenty of light lit in the house at the time of occurrence, therefore, identification of accused was quite possible, particularly, when they were previously known to the complainant party---Nothing was extracted from the mouth of the complainant to the effect that on the day and time of occurrence he was not present in the house and was present somewhere else---As per statement of complainant, he was 62 years old; therefore, his presence in his house at the time of incident was quite natural and was appealable to a prudent mind---Another eye-witness aged 24/25 years, who had stamp of injuries on her person appeared and remained stuck to her initial stance and corroborated the testimony of complainant on each and every aspect of the occurrence i.e. the day, time and place of occurrence as well as the mode and manner in which the occurrence took place---Injured witness had also furnished true account of the events occurred at the spot---Said witness had not tried to minimize the role of firing on their behalf by deceased---Circumstances established that the prosecution had proved the guilt of the accused persons through cogent and confidence direct/ocular evidence---Appeal was dismissed accordingly.

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

----Ss. 302, 324, 449 & 337-F(v)---Qatl-i-amd, attempt to commit qatl-i-amd, house-trespass in order to commit offence punishable with death, ghayr-jaifah-hashimah--- Appreciation of evidence---Place of occurrence was not doubtful---Scope---Accused were charged for committing murder of two persons of the complainant party and injuring one person by firing, complainant party made firing in defence, due to which one person of the accused party was hit and died---In the present case, from the places of deceased persons as well as injured, blood was secured by the Investigating Officer along with last worn bloodstained garments of the deceased and that of injured was sent to the Forensic Science Laboratory, positive report whereof corroborated the ocular account of the eye-witnesses and proved the crime spot to be the same place as alleged by the eye-witnesses---Circumstances established that the prosecution had proved the guilt of the accused persons through cogent and confidence direct/ocular evidence---Appeal was dismissed accordingly.

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

----Ss. 302, 324, 449 & 337-F(v)---Qatl-i-amd, attempt to commit qatl-i-amd, house-trespass in order to commit offence punishable with death, ghayr-jaifah-hashimah--- Appreciation of evidence---Recovery of weapon of offence and crime empties---Reliance---Scope---Accused were charged for committing murder of two persons of the complainant party and injuring one person by firing, complainant party made firing in defence, due to which one person of the accused party was hit and died---Forensic Science Laboratory Report with regard to Kalashnikovs of deceased persons produced by complainant to the author of Murasila at the time of report were also sent to the Forensic Science Laboratory by the Investigating Officer along with 14 and 04 crime empties---According to Forensic Science Laboratory Report 14 empties were fired from the Kalashnikov of accused/deceased and 04 from that of deceased---Said piece of circumstantial evidence also corroborated the ocular account furnished by the eye-witnesses---Circumstances established that the prosecution had proved the guilt of the accused persons through cogent and confidence direct/ocular evidence---Appeal was dismissed accordingly.

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

----Ss. 302, 324, 449 & 337-F(v)---Qatl-i-amd, attempt to commit qatl-i-amd, house-trespass in order to commit offence punishable with death, ghayr-jaifah-hashimah--- Appreciation of evidence---Medical evidence---Scope---Accused were charged for committing murder of two persons of the complainant party and injuring one person by firing, complainant party made firing in defence, due to which one person of the accused party was hit and died---Statement of Lady Medical Officer, who conducted autopsy on the dead body of the deceased and examined injured, also supported the ocular account of the prosecution's case---According to post-mortem report, lady deceased met her unnatural death due to firearm injuries to her vital organ like heart---Similarly, as per Medico-Legal Report, injured had sustained firearm injuries---Medical Officer, who had conducted autopsy on the dead body of deceased persons appeared in the witness box and affirmed the death of both the deceased as unnatural due to firearm injuries---All the deceased had received firearms injuries on their bodies having different dimensions meaning thereby that different weapons had been used in the commission of offence---Medical evidence supported the eye-witness's account---Circumstances established that the prosecution had proved the guilt of the accused persons through cogent and confidence direct/ocular evidence---Appeal was dismissed accordingly.

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

----Ss. 302, 324, 449 & 337-F(v)---Qatl-i-amd, attempt to commit qatl-i-amd, house-trespass in order to commit offence punishable with death, ghayr-jaifah-hashimah--- Appreciation of evidence---Motive was proved---Scope---Accused were charged for committing murder of two persons of the complainant party and injuring one person by firing, complainant party made firing in defence, due to which one person of the accused party was hit and died---Motive behind the occurrence was that some 14/15 years prior to the occurrence, deceased lady/relative of accused party had eloped with brother-in-law of the complainant, due to which, incident took place---Record showed that motive advanced by the complainant had not only been proved by the prosecution in the case but also admitted by the accused party in FIR wherein it had been alleged that on the relevant night there was a Jirga between the parties over the issue of elopement of deceased lady with brother-in-law of the complainant---Circumstances established that the prosecution had proved the guilt of the accused persons through cogent and confidence direct/ocular evidence---Appeal was dismissed accordingly.

Altaf Khan and Muhammad Fahim for Appellants.

Muhammad Nisar, A.A.G. for the State.

Syed Mubashir Shah for Respondent No.2

2023 Y L R 1143

[Peshawar (D.I. Khan Bench)]

Before Sahibzada Asadullah, J

ASIF ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail No. 190-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 & 34---Qatl-i-amd, attempt to commit qatl-i-amd and common intention---Bail, grant of---Contradictory statements--- Un-natural conduct---Scope---Accused along with others was alleged to have murdered the sister of complainant and attempted at the life of complainant---Deceased had received a solitary injury but it had led to a charge against three real brothers---Complainant had introduced a new eye-witness of the incident during spot inspection by the Investigating Officer---Prosecution had yet to explain as to whether in case of .30 bore pistol, blackening was possible, that too, from a distance of 3 to 4 paces---Accused had succeeded in making out a case for bail---Petition for grant of bail was allowed, in circumstances.

Awal Khan and 7 others v. The State through AG-KPK and another 2017 SCMR 538 ref.

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

----S.497---Bail---Tentative assessment---Scope---Court seized of a bail matter is to make tentative assessment and deeper appreciation is not warranted but bail applications cannot be heard and decided in a vacuum and the courts of law should apply their judicial mind to the collected evidence, though tentatively, to avoid miscarriage of justice and if the doubt is apparent from the record, its concession should be extended to the accused even at bail stage.

Muhammad Faisal v. The State and another 2020 SCMR 971 rel.

Sh.Iftekhar ul Haq for Petitioner.

Rehmatullah, A.A.G. for the State

Inamullah Khan Kundi for Respondents.

2023 Y L R 1170

[Peshawar]

Before Lal Jan Khattak and S M Attique Shah, JJ

MANZOOR and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 1154-P of 2018, decided on 3rd November, 2022.

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

----Ss. 302(b), 427 & 34---Qatl-i-amd, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence---Benefit of doubt---Testimony of sole eye-witness---Allegedly the accused in furtherance of their common intention committed murder of the deceased---Motive behind the occurrence was a dispute over crops between the parties---Ocular account had been furnished by uncle of the deceased---Testimony of sole eye-witness lacked corroboration from related circumstantial evidence of including medical evidence---Besides the above, another point in the case for consideration was that though from the spot three empties of 7.62 bore were taken into possession by the Investigating Agency but there was no report of Forensic Science Laboratory which could show that the recovered empties were fired from one or more than one weapons---Omission on the part of the prosecution to produce Forensic Science Laboratory Report had cast reasonable doubt on its case in absence of which, keeping in view the similarity of dimensions of the injuries, it could not be held with certainty that the deceased was done to death by more than one person as was the prosecution version---Benefit of same would go to the accused persons---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of doubt---Appeal against conviction was allowed accordingly and accused were acquitted of the charge.

(b) Criminal trial---

----Witness--- Related and interested witness, evidence of---Scope---No doubt, evidence provided by closely related eye-witness is as good as given by another independent witness having no relations with the victim---However, before placing reliance on the ocular account of the related witness the Courts always look for independent source which could corroborate such evidence and same is taken into consideration only for recording conviction of the accused if same is corroborated by independent circumstantial evidence and (others) factors of the case.

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

----Ss. 302(b), 427 & 34---Qatl-i-amd, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence--- Benefit of doubt--- Conduct of eye-witness questionable---Allegedly the accused in furtherance of their common intention committed murder of the deceased---Conduct of the eye-witness/uncle of the deceased was questionable as according to him after taking the deceased to a hospital, he thereafter returned to his village leaving the victim alone in critical condition who later on was referred to another hospital for further treatment---Leaving the injured in critical condition in the hospital alone and not accompanying him to another hospital for his further medical treatment was unnatural conduct which could not be expected by a prudent mind from a very close relative---Had the witness been present on the spot at the time of firing and with the then injured in hospital, he must have accompanied him when he was referred to another hospital for further treatment, which attitude of the witness amply excluded his presence on the crime spot and with the then injured in the hospital where the report was lodged---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of doubt---Appeal against conviction was allowed accordingly and accused persons were acquitted of the charge.

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

----Ss. 302(b), 427 & 34---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence---Benefit of doubt---Dying declaration---Scope---Allegedly the accused in furtherance of their common intention committed murder of the deceased---No doubt, initial version of the occurrence was provided by the deceased himself to a witness, but there was no material on the case file which could show that said report was lodged by the then injured in immediate presence of the Medical Officer who provided initial treatment to him---Though, Medical Officer had stated that at the time of his examination, the patient was fully conscious, able to talk and well oriented but as he had not stated in clear and unequivocal terms that in his presence the then injured had reported the matter to the police nominating therein the accused persons, therefore, the report lodged by the then injured on which signatures of a witness did appear, could not be taken into account as his dying declaration for recording conviction of the accused persons---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of doubt---Appeal against conviction was allowed accordingly and accused were acquitted of the charge.

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

----Ss. 302(b), 427 & 34---Qatl-i-amd, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence---Benefit of doubt---Site plan---Allegedly the accused in furtherance of their common intention committed murder of the deceased---Site plan of the case did not support the prosecution version according to which the eye-witness was found present in front of the house of the deceased for which he had not given any explanation that for what purpose he was standing in front of the deceased's house---Giving no justification qua his presence on the spot at the time of occurrence by the eye-witness showed that his presence was procured subsequently in order to strengthen the prosecution case---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of doubt---Appeal against conviction was allowed accordingly and accused were acquitted of the charge.

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

----Ss. 302(b), 427 & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence---Benefit of doubt---Withholding material evidence--- Allegedly accused in furtherance of their common intention committed murder of the deceased---Record showed that the rider of the FIR was not produced---Non-examination of said witness had weakened the prosecution case as in his presence the then injured had reported the matter to the local police regarding the occurrence---Examination of rider of FIR was necessary as in his presence, per prosecution, the deceased had reported the matter---Thus, the prosecution for no valid reason withheld a very relevant piece of evidence---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of doubt---Appeal against conviction was allowed accordingly and accused were acquitted of the charge.

Muhammad Saeed Khan for Appellants.

Muhammad Bashar Naveed, A.A.G. for the State.

Mian Fahim Akbar for Respondent-Complainant.

2023 Y L R 1218

[Peshawar]

Before Mohammad Ibrahim Khan, J

DANISH KHAN AFRIDI---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous (B.A.) No. 489-P of 2022, decided on 11th April, 2022.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 148, 149, 109, 427, 353, 34, 337-D, 337-F(iii), 338-C & 120-B---Qatl-i-amd, attempt to commit qalt-i-amd, rioting, armed with deadly weapon, abetment, mischief causing damage to the amount of fifty rupees, assault or criminal force to deter public servant from discharge of his duty, common intention, jaifah, mutalahimah, isqat-i-janin, criminal conspiracy---Bail, refusal of---Scope---Prosecution case was that the accused along with others assassinated a District and Sessions Judge/Presiding Officer of Anti-Terrorism Court, his wife, pregnant daughter-in-law and minor grandson by showering them with bullets and also injured police officials---Held; dilating deep on the grounds raised during the arguments in support of the accused was apprehended to affect case of either of the two opposing sides which was to be invariably avoided---Accused notwithstanding a practicing lawyer was shown absconding for more than eight months---Accused was not entitled for the solicited relief for the grant of bail---Bail petition was dismissed, in circumstances.

Awal Gul v. Zawar Khan and others PLD 1985 SC 402; Mian Muhammad Nawaz Sharif v. The State through Chairman NAB PLD 2022 Isl. 13; Muhammad Afzal v. The State 2012 SCMR 707; Ghulam Ahmed Chishti v. The State and another 2013 SCMR 385; Abdul Latif v. The State and another 2015 PCr.LJ 1083; Khan Afsar v. The State and another 2020 PCr.LJ Note 195; Irfan Ullah v. The State and another 2019 YLR Note 76; Gul Baz v. The State and another 2021 YLR 2185; Muhammad Sarfaraz Ansari v. The State and another PLD 2021 SC 738; Muhammad Irfan v. The State and another 2021 PCr.LJ 195 and Muhammad Sher Khan v. The State and another 2021 PCr.LJ 1811 ref.

Resham Khan and another v. The State through Prosecutor General Punjab, Lahore and another 2021 SCMR 2011; Mukhtar Ahmad v. The State and 2 others 2017 PCr.LJ 1092; Jahanzeb and others v. State through AG Khyber Pakhtunkhwa, Peshawar and another 2021 SCMR 63; Sajid v. Samin ur Rehman (deceased) through his father and others 2021 SCMR 138; Saeed Yousaf v. The State and anther 2021 SCMR 1295; Khair Muhammad and another v. The State through P.G Punjab and another 2021 SCMR 130; Abdul Rasheed v. The State 2021 YLR 73; Muhammad Sarfaraz Ansari v. The State and others PLD 2021 SC 738; Muhammad Arshad Nadeem v. The State PLD 2021 SC 927; Naeem Khan v. The State and others 2022 SCMR 419 and Sikandar Hayat v. The State and another 2022 SCMR 1998 distinguished.

Hussain Ali, Shabbir Hussain Gigyani and Sajeed Khan Afridi for Petitioner.

Gul Daraz Khan for the State.

Sher Afzal Khan Marwat for the Complainant.

2023 Y L R 1266

[Peshawar]

Before Lal Jan Khattak and Ishtiaq Ibrahim, JJ

RAB NAWAZ---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 247-P of 2021, decided on 21st September, 2022.

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

----Ss. 302(b), 324, 337-D, 334 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, jaifah, itlaf-i-udw, common intention---Appreciation of evidence---Delay of three hours in lodging the FIR---Immaterial---Accused persons were charged for committing murder of two persons and causing injuries to one person from the complainant party by firing---Motive behind the occurrence was stated to be blood feud---Admittedly the occurrence had taken place at 05:00 p.m. while the report was lodged at 08:00 p.m. with a delay of 03 hours---According to the murasila and site plan the occurrence had taken place near the house of Mr. "Z" at thoroughfare of a village---Scribe of the report of the complainant in his cross-examination stated that the distance between the place of occurrence and hospital was about 35/36 kilometers---Two persons had lost their lives while one was injured, considerable time would have been spent in making preparations for shifting the deceased and injured to the hospital---By considering the facts of the present case the delay would be immaterial and was of no benefit to the accused---Medical Officer conducted autopsy on the dead body of the deceased at 08:00 p.m. while probable time between death and post mortem was mentioned as 03 hours which corresponded with the time of occurrence as stated in the FIR i.e. 05:00 p.m.---Similarly, autopsy of female deceased was conducted at 11:00 p.m. and the time between death and post mortem was mentioned as within 06 hours which also confirmed the time of occurrence as mentioned in the report of the complainant---Circumstances established that the prosecution had proved its case against the accused, however, the present accused was held liable for the injury caused by him to injured, therefore, his conviction and sentence under Ss. 324, 337-D, 334, P.P.C. read with S. 337-T, P.P.C., was maintained while he was acquitted of the charge of qatl-i-amd of deceased persons---Appeal was dismissed with said modification, in sentence.

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

----Ss. 302(b), 324, 337-D, 334 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, jaifah, itlaf-i-udw, common intention---Appreciation of evidence---Ocular account supported by medical evidence---Accused persons were charged for committing murder of two persons and causing injuries to one person from the complainant party by firing---Complainant reiterated the same narration as mentioned in the report---Injured/eye-witness supported the version of the complainant and his presence on the spot at the time of occurrence---Said witnesses were subjected to thorough cross-examination, but no material contradictions came to surface to cast doubt on the prosecution version---Nothing favorable to the accused was brought on the record and no reason for false implication had been suggested---Presence of the complainant and injured/eye-witness along with the deceased had been proved and they could be regarded as reliable witnesses and even their evidence by itself alone was sufficient without any independent corroboration---Medical Officers were examined who had given the details of injuries caused to the deceased as well as to the injured---Medical evidence fully supported the version of complainant---Circumstances established that the prosecution had proved its case against the accused, however, the present accused was held liable for the injury caused by him to injured, therefore, his conviction and sentence under Ss. 324, 337-D, 334, P.P.C. read with S. 337-T, P.P.C. was maintained while he was acquitted of the charge of qatl-i-amd of deceased persons---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b), 324, 337-D, 334 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, jaifah, itlaf-i-udw, common intention---Appreciation of evidence---Incriminating materials recovered from the spot---Reliance---Accused persons were charged for committing murder of two persons and causing injuries to one person from the complainant party by firing---Investigation Officer had secured blood stained pebbles from the place of male deceased, 05 empties from the places of accused, blood-stained earth from the place of female deceased and injured, and 12 empties lying in scattered position from near the place of two accused persons---Investigating Officer had sent the blood stained articles and recovered empties to the Forensic Science Laboratory and received the Forensic Science Laboratory Report---According to the said Report the crime empties were found to be fired from different weapons which further strengthened the prosecution case---Said recoveries shown in the site plan fully supported the ocular account---Circumstances established that the prosecution had proved its case against the accused, however, the present accused was held liable for the injury caused by him to injured, therefore, his conviction and sentence under Ss. 324, 337-D, 334, P.P.C., read with S.337-T, P.P.C. was maintained while he was acquitted of the charge of qatl-i-amd of deceased persons---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b), 324, 337-D, 334 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, jaifah, itlaf-i-udw, common intention---Appreciation of evidence---Motive proved---Accused persons were charged for committing murder of two persons and causing injuries to one person from the complainant party by firing---Motive behind the occurrence was stated to be blood feud---As per record, the complainant in his report in the shape of murasila had stated motive behind the occurrence as blood feud between the parties---Thus, stance of prosecution with regard to motive had been fully proved by the prosecution---Moreover, the Trial Court had also given proper ground for lesser sentence---In such state of affair, the prosecution had proved the guilt of the accused through cogent and confidence inspiring ocular/direct evidence---Circumstances established that the prosecution had proved its case against the accused, however, the present accused was held liable for the injury caused by him to injured, therefore, his conviction and sentence under Ss. 324, 337-D, 334, P.P.C., read with S. 337-T, P.P.C. was maintained while he was acquitted of the charge of qatl-i-amd of deceased persons---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b), 324, 337-D, 334 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, jaifah, itlaf-i-udw, common intention---Appreciation of evidence---Common intention, applicability of---Accused persons were charged for committing murder of two persons and causing injuries to one person from the complainant party by firing---Present accused was charged by the complainant for firing at injured only, and the acquitted co-accused (since deceased) and absconding co-accused were assigned the role of firing at the deceased persons---Trial Court had convicted the accused under all the sections by holding that he had shared common intention and was liable for the death of both the deceased, even when firing at them was not attributed to the present accused---Record showed that the occurrence had taken place in a thoroughfare in front of the house of one "Z", which was neither the place of residence of the complainant party nor that of the accused---Thus, it appeared that the parties had confronted each other per chance at the relevant time and thereafter the incident occurred---Question was whether in such like circumstances the prosecution had been able to prove the community of common intention of the accused with the co-accused---Moreover, the owner of the house "Z" who was relative of the complainant was abandoned by the prosecution---In addition to that, it was also in the evidence that the house of the complainant party was visible and they could see each other from their respective houses---Had the present incident been a preplanned murder then the accused could have done it at some other place and time---Thus, the findings of the Trial Court holding the accused vicariously liable for the act of his co-accused i.e. for the murder of two persons, was not inconsonance with the provision of S. 34, P.P.C., hence the evidence to that extent had not been properly appreciated by the Trial Court---Accused was only held liable for the injury caused by him to injured, therefore, his conviction and sentence under Ss. 324, 337-D, 334, P.P.C., read with S. 337-T, P.P.C., was maintained while he was acquitted of the charge of qatl-i-amd of deceased persons---Appeal was dismissed with said modification in sentence.

Pandurang, Tukia and Bhillia v. The State of Hyderabad PLD 1956 Supreme Court (India) 176 rel.

Hussain Ali for Appellant.

Niaz Muhammad, A.A.G. for the State.

Dr. Ameer Ajam Khattak and Sadiq Nawaz Khattak for the Complainant.

2023 Y L R 1288

[Peshawar (Abbottabad Bench)]

Before Mohammad Ibrahim Khan and Shakeel Ahmad, JJ

BADSHAH JAN WAZEER---Petitioner

Versus

STATE through Assistant Commissioner Khnapur and 3 others---Respondents

Writ Petition No. 1298-A of 2021, decided on 3rd November, 2021.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Quashing of FIR---Scope---Petitioner sought quashing of FIR registered against him under S. 188, P.P.C.---Assistant Commissioner had concealed about the fact of any office order which had been violated---Even timings when he had gone for visit/checking of the house of the petitioner at 17:40 hours was beyond understanding as to how in mountainous region, any such construction was underway at dark odd hours---If at all any renovation work was in progress in the house of the petitioner, it was never the violation of any office order of the Deputy Commissioner---Mere renovation in the house of petitioner did not constitute construction as prohibited in the said office order and was permissible, for which no "NOC" was required of the concerned authorities---FIR had no legal value on the ground that lodger of the FIR was an Assistant Commissioner, complaining of violation of the orders of Deputy Commissioner, to whom he was subordinate and was not competent to register the same---No offence within the meaning of S. 188, P.P.C. was made out---Constitutional petition was allowed and the FIR was quashed.

Dr. Muhammad Ibrahim Khan and 2 others v. The State 2001 YLR 566 and Malik Muhammad Ayoob Awan v. Akhtar Lodhi, S.H.O Police Station Shahrah-e-Faisal Karachi and 2 others 2001 PCr.LJ 1196 ref.

Ghulam Rasool and 3 others v. The State 1998 PCr.LJ 584 rel.

Aziz Ahmed Khan for Petitioner.

Sardar Muhammad Asif, Additional A.G. for the State.

Rasheed ul Haq Qazi for Respondents for the GDA.

2023 Y L R 1305

[Peshawar]

Before Rooh-ul-Amin Khan and Ishtiaq Ibrahim, JJ

MANSOOR KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 269-P of 2015, decided on 14th September, 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---Benefit of doubt---Improvements by the witnesses---Effect---Accused was charged that he along with his co-accused made firing upon the complainant party, due to which five persons were hit, out of which two died---Prosecution case was based upon the ocular account furnished by injured-complainant and injured witness---Complainant in his initial report as well as in his Court statement stated that he was with his deceased brother, another deceased and injured---Injured witness was nephew of complainant and both were the residents of village, District "N", while the accused and the co-accused were the residents of village, District "P" and there was no relationship/friendship whatsoever in between the complainant and all the accused, but, despite that the complainant charged all the accused by name in his initial report i.e. murasila and Court statement---Complainant in his initial report stated that all the accused were armed with "Aslaha Atasheen" and started firing at person "K" as well as at them and that he, the two deceased, injured and passerby (injured) were shifted by "A" and others to the hospital and that besides him, the occurrence was also witnessed by injured---Complainant in his initial report had not disclosed the purpose of his visit to a 'Stop' and during cross-examination he also stated that he did not know that for which purpose they were coming to the said 'Stop', however, he volunteered that they were coming to their vehicle, even then he did not disclose the description of his vehicle and the later portion of his statement came within the definition of improvement---As per complainant, he along with his companions were coming in a Rickshaw and when they reached the place of occurrence, they deboarded from the rickshaw in order to separate the parties i.e. accused party and one "K" group but, the prosecution did not bother to record the statement of driver of Rickshaw, who was admittedly co-villager of complainant, and the Investigating Officer had not taken into possession the said Rickshaw, which could prove and establish the version of complainant---Complainant in his report stated that all the accused were armed with Aslaha Atasheen, however, in cross-examination he stated that all the accused had fired indiscriminately and continued for 04/05 minutes and that the pistols were automatic and the firing was rapid and the assertion regarding firing with automatic pistols was for the reason that during spot inspection, the Investigating Officer recovered one empty of .30 bore---Complainant in his cross-examination further stated that they remained on the spot after firing for 04/05 minutes and then they were shifted to the hospital in an ambulance which was available on the spot and that blood was also oozing in the vehicle in which they were shifted to the hospital---Availability of ambulance at the crime spot at the relevant time was a question mark and not appealable to a prudent mind as no blood was taken into possession by the Investigating Officer from the vehicle---Even statement of its driver had also not been recorded to establish the prosecution version---Complainant in his cross-examination had further stated that "K" was also fired at by all the accused, but despite indiscriminate firing for 04/05 minutes as per complainant version, "K" did not receive a single injury or a scratch despite that the altercation was between "K" and the accused party, which was not believable and fit in the natural probabilities---Furthermore "K" had not been produced by the prosecution to prove the fact that a quarrel/altercation took place in between him and the accused party and that the complainant party intervened between them for their separation---Complainant stated that the firing continued for 04/05 minutes while injured in his cross-examination stated that the accused had fired for 15 minutes with their respective pistols---Passerby also sustained firearm injuries in the present occurrence, but, the prosecution did not bother to produce him before the Court and record his statement in order to corroborate the prosecution version---Complainant stated that the accused also fired at "K" while injured stated that "K" was not at all fired at---Medico-Legal Report of injured revealed that the injured was conscious at the time of his examination by the doctor, however, said injured in his court statement stated that he was seriously injured and was unconscious---Complainant as well as injured witness in their statements had stated that the firing continued for about 04/05 and 15 minutes respectively and the Investigating Officer in his cross-examination stated that the shops shown in the site plan did come in the firing range, but, he had not noted any firing marks on the walls of the said shops---In this case four accused had been charged for the commission of offence---Investigating Officer during spot inspection recovered only one empty of .30 bore from the crime spot while the complainant charged four persons attributing to them the role of firing with pistols while the injured witness and complainant in their respective statements had stated that the firing continued for about 4/5 to 15 minutes, which was unbelievable and also went to the roots of the prosecution case and element of exaggeration and false implication could not be ruled out---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

(b) Criminal trial---

----Injured witness---Scope---No doubt, stamp of injuries shows the presence of injured at the spot, but it is not a guarantee that he/she is a truthful witness---Court has to evaluate the intrinsic worth of statement of the injured witness by considering the circumstances of each and every case.

Amin Ali's case 2011 SCMR 323; Tariq Mehmood v. State 2019 SCMR 1140 and Mst. Rukhsana Begum v. Sajjad and others 2017 SCMR 596 rel.

Syed Hamad Tariq for Appellant.

Muhammad Inam Khan Yousafzai, Addl. A.G. for Respondent.

Nemo for the Complainant.

2023 Y L R 1338

[Peshawar (Abbottabad Bench)]

Before Wiqar Ahmad and Fazal Subhan, JJ

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

Versus

INAYATUR REHMAN---Respondent

Criminal Appeal No. 104-A of 2014, decided on 4th October, 2022.

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

----S. 9 (c)---Criminal Procedure Code (V of 1898), S. 417---Recovery of narcotic substance---Appeal against acquittal---Recovery, proof of---Unexplained delay in sending parcels---Accused was alleged to have been arrested on the spot and from his possession Chars weighing 6 kilograms and opium weighing 4 kilograms were recovered---Trial Court acquitted accused of the charge--- Validity--- Neither quantity of each packet was according to the reported quantity, nor opium was proved to be narcotic substance---No sample was separated from Chars as all alleged packets were intact---Strong presumption existed that fake and fabricated case was foisted against accused---Forensic Science Laboratory authorities received sample after an unexplained delay of five days---Name of police official who took the sample parcels to Forensic Science Laboratory was not mentioned, and no receipt was issued regarding receiving of sample parcels---Signature of Chemical Examiner was missing from the report, which had given the impression of a dubious report and rendered the same totally unreliable---High Court declined to interfere in the judgment of acquittal as Trial Court had correctly appreciated record and rightly discarded prosecution story and acquitted the accused---Appeal was dismissed, in circumstances.

Sardar Ali Raza, A.A.G. for Appellant

Nemo for Respondent.

2023 Y L R 1377

[Peshawar]

Before Ishtiaq Ibrahim, J

NAVEED---Appellant

Versus

The STATE---Respondent

Quashment Petition No. 50-P of 2022, decided on 5th December, 2022.

Prevention of Electronic Crimes Act (XL of 2016)---

----Ss. 21 & 24---Criminal Procedure Code (V of 1898), S. 561-A---Modesty of a natural person and cyber stalking---Appreciation of evidence---Explicit content, sending of---Proof---Accused was alleged to have transmitted objectionable photograph of complainant to her father with intention to force the family to enter into compromise in another criminal case---Trial Court and Lower Appellate Court convicted and sentenced the accused of the offences---Validity---Motive behind occurrence was reasonably implausibly explained by complainant and her father in their respective statements recorded during trial---Accused had sent explicit content of complainant and messages to her father---Various crimes were addressed by Prevention of Electronic Crimes Act, 2016, by the name of Cyber Crimes---Such crimes though taking various forms could be broadly classified under the scheme of Prevention of Electronic Crimes Act, 2016, as either directly targeting an electronic device or using it to facilitate other crimes---Transmission through an electronic device as well as cyber stalking used to intimidate and influence outcome of a murder charge---Transmission of images was the means to achieve the end goal and charges were laid under Ss. 21 & 24 of Prevention of Electronic Crimes Act, 2016, which had been duly proved by prosecution and accused was rightly convicted and sentenced by two forums below---High Court declined to alter factual findings by lower fora at the altar of every doubtful may, as the same carried significant weight---Petition was dismissed, in circumstances.

Surah Al-Hujurat Ayah 12 (Translation by A. Yusuf Ali) rel.

Ali Zaman for Appellant.

Muhammad Ashfaq Daudza, A.A.G. for the State.

Dr. Ameer Ajam Khattak and Shahid Qayyum Khattak for the Complainant.

2023 Y L R 1399

[Peshawar]

Before Ishtiaq Ibrahim and S M Attique Shah, JJ

ZABIT KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 40-P of 2019, decided on 31st May, 2022.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that 17 packets of charas garda each packet weighing 1200 grams and one packet opium weighing 1200 grams were recovered from the CNG Tank installed in Digi of the car, driven by the accused---Record showed that the parcel of opium was found consisted of several pieces---Parcel No.1 containing charas garda was found in the shape of pieces, parcel No.2 was full slab, parcel No.3 in shape of different separate pieces, parcel No.4 was in the round shape and the remaining parcels were also found in full slab and pieces---Investigating Officer of the case in cross-examination stated that samples parcels were handed over to Muharrir by him on the same day, when he returned from the spot, but the Head Constable deposed that he was posted as Moharrir at Police Station, Constable produced the murasila to him in the Police Station, the contents of which he incorporated in FIR---Later on, the SHO handed over to him the case property consisting of parcel No.19 containing 20315 grams charas and parcel No.20 containing 1195 grams opium in sealed condition, however, he did not utter a single word regarding the parcels of samples to have been produced by Investigating Officer---Muharrir of the Police Station during the days of occurrence had not stated a single word regarding sending of samples to the Forensic Science Laboratory---However, perusal of Forensic Science Laboratory Report revealed that the samples of contraband were delivered in the laboratory by Foot Constable, but, it was strange to note the said constable had not been examined by the prosecution---Prosecution had failed to prove shifting of samples to the Police Station and from there to the Forensic Science Laboratory, especially when copy of the application for sending samples to the Forensic Science Laboratory was not available on case file---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed accordingly.

(b) 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---Prosecution case was that 17 packets of charas garda each packet weighing 1200 grams and one packet opium weighing 1200 grams were recovered from the CNG Tank installed in Digi of the car, driven by the accused---Forensic Science Laboratory Report upon its perusal did not signify the test protocols that were applied to carry out the test; therefore, the mandatory requirement of law provided by R. 6 had not been complied with in its letter and spirit---Non-compliance of the said Rule would render the report inconclusive, suspicious and non-trustworthy and the same could not be relied upon qua maintaining the conviction and sentences of the accused in the circumstances, as it lacked evidentiary value--- Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed accordingly.

Khair-Ul-Bashar v. The State 2019 SCMR 930; Muhammad Boota v. The State and another 2020 SCMR 196 and Qaiser Javed Khan's case PLD 2020 SC 57 rel.

(c) Criminal trial---

----Benefit of doubt---Principle---If a single doubt arising, the benefit of which must be extended to the accused.

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

----S. 9---Possession of narcotics---Quantity of contraband---Scope---Law mandated that Courts were to be conscious of not the quantity of contraband, but the quality of evidence produced in the Court for reaching a correct conclusion and just decision of the case.

Shahzada's case 2010 SCMR 841 rel.

Abdul Qayyum Sarwar and Ms. Shabina Noor for Appellant.

Muhammad Nisar Khan, A.A.G. for the State.

2023 Y L R 1496

[Peshawar (Mingora Bench)]

Before Dr. Khushid Iqbal, J

LIAQAT ALI---Petitioner

Versus

Mst. ZULFAT and others---Respondents

Writ Petition No. 1216-M of 2021 with Interim Relief (N), decided on 22nd November, 2022.

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

----S. 5---Concurrent finding---Ex-patre decree, setting aside of---Application for setting aside ex-parte decree was dismissed by the executing/Trial Court being time barred and appeal preferred thereagainst also met the same fate---Validity---Petitioner had joined the execution proceedings after approximately one year and had also filed an application for setting aside the ex-parte decree that day but his application was not supported by any application for condonation of delay---Record showed that petitioner was served upon properly but he was deliberately avoiding service---No exception could be taken to the orders and judgment of both the courts below--- Instant petition was dismissed, in circumstances.

Iftikhar Ahmad v. Mst. Jehan Ara and 3 others 2007 SCMR 449 and Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631 ref.

(b) Constitution of Pakistan---

----Art. 10A---Right to fair trial---Scope---Right to a fair trial requires affording of proper opportunity of hearing to the parties, so their valuable rights could be protected---Doctrine of equality of arms i.e. due consideration to the complainant / plaintiff at the trial is also part of the right to a fair trial.

Amar Jeet Singh v. Sant Singh 2022 CLC 6 ref.

Ahmad Hussain for Petitioner.

Farhad Ali for the Respondents Nos. 1 and 2.

2023 Y L R 1625

[Peshawar (Bannu Bench)]

Before S M Attique Shah and Sahibzada Asadullah, JJ

AHMAD KAMAL alias KAMAL KHAN and another---Appellants

Versus

STATE and 2 others---Respondents

Criminal Appeal No. 192-B of 2021, decided on 12th May, 2022.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Night time occurrence---Source of light---Bulbs from relevant spot of occurrence not collected--- Effect--- Accused were charged for committing murder of the son of the complainant by firing---Complainant disclosed that the deceased was fired at and that the accused were identified in the light of bulbs, which were installed in different houses of the street---Complainant was examined on this particular aspect of the case, where he stated that the Investigating Officer recovered a bulb from the main gate of his house and another, installed in the electric pole---Investigating Officer, while preparing the site plan, allegedly took into possession a bulb from the main gate of the complainant which had been shown at point-D, whereas, the recovered tube light from the electric pole was mentioned at point-A in the site plan---As at the time of incident, it was pitch dark and the complainant and eye-witness were able to identify the assailants in the bulbs light installed at the place of incident, so its importance could not be overlooked and the same needed consideration---Site plan transpired that the place where the deceased received firearm injuries no electric tube light was installed---Prosecution alleged that the assailants were identified in the tube light installed in the electric pole---In order to ascertain as to whether the identification from such a long distance i.e. the pole where the tube light was installed, and the assailants wherefrom they fired at the deceased, was possible it was essential to go through the statements of the witnesses and that of the Investigating Officer---Complainant stated that the inter se distance between the electric pole and the assailants was 35 paces with further explanation that the deceased was seven paces ahead from them, whereas, the distance between the assailants and the deceased was given as eight paces---Keeping in view the distance between the parties and that of the electric pole, it did not appeal to a prudent mind that from such a long distance of more than seventy feet the identification was possible---Investigating Officer, during spot inspection, took into possession an electric bulb from the main gate of the complainant, but he did not collect any bulb from the house where the deceased received firearm injuries---If the complainant's statement was admitted as correct that different lights were installed on the surrounding houses, then in that eventuality, it would have been of prime importance for the Investigating Officer to collect an electric bulb from the house of one Mr. "H", where the deceased received firearm injuries---Circumstances suggested that the deceased was not fired at, at point No. 1, rather he was fired at, at point No. 1A, in front of his house---Physical circumstances of the case ran in conflict with the statements of the witnesses---Had the deceased received firearm injuries at point No.1, then there was hardly an occasion for him to rush back to point No. 1A, as the injuries received by the deceased were on the most sensitive parts of the body---If it was admitted that the deceased received firearm injuries at point No.1 and fell on the ground at point No. 1A, then in that eventuality, the Investigating Officer would have found the trail of blood between the two points, but neither he mentioned the same nor it was found---Circumstance of the case negated the version of the complainant and it gave birth to suspicion that the deceased did not receive firearm injuries on the stated position---Appeal against conviction of accused was allowed accordingly.

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

----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 doubtful---Accused were charged for committing murder of the son of the complainant by firing---In the present case, if the deceased and eye-witnesses were present on the points, as had been shown in the site plan, then in that eventuality, the complainant and eye-witness would have also received firearm injuries, but they did not---Complainant in his court statement stated that the street was closed towards north, but surprisingly, the Investigating Officer did not notice any bullet mark on the surrounding walls---Complainant, when appearing before the Court, stated that he along with the deceased and the witness were on their way to the local mosque to perform Isha prayer, when the incident occurred---Said fact time and again came from the mouth of the witnesses that Isha prayer was to be performed at 09:00 pm---If the claim of the witnesses that it was their routine to go to the mosque and perform prayer, was taken as correct, then in that eventuality, the complainant, eye-witness and the deceased would have gone to the mosque a little earlier---Record revealed that it was the deceased who was walking ahead, whereas, in the part of the country where the occurrence took place, if a father and a son went to the mosque together, then as a matter of respect, the elders took the lead and the youngster followed---If all the three left the house together, then there was hardly an occasion for the deceased to go eight paces ahead, rather all the three would walk together---Complainant, when appearing before the Trial Court, stated that as soon as they took a turn, the assailants fired at them, whereas, the site plan depicted that after taking turn, the deceased walked eight paces towards the assailants---So, the witnesses remained inconsistent on that particular aspect of the case and even, the site plan contradicted the stance of the complainant---Appeal against conviction of accused was allowed accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Ocular account belied by medical evidence---Accused were charged for committing murder of the son of the complainant by firing---Eye-witness stated that after collecting the dead body from the spot, they reached the hospital at 10:00 p.m., whereas, in the same breath, he further explained that it was at 10:08 p.m. that they reached the hospital---Prosecution had to explain as to why the matter was not reported soon after reaching the hospital---Dead body was received by the doctor for postmortem examination at 11:00 p.m. and the same was completed at 11:30 p.m., whereas, the report was made at 11:15 p.m.---Prosecution remained silent on that particular aspect of the case and even, if the statements of the witnesses were taken to be correct, then in that eventuality, the time of report and the time when the postmortem examination was conducted, did not support each other---After reporting the matter, the injury sheet and inquest report were prepared---In the relevant column of the inquest report, the time of death was mentioned as 09:30 p.m., which further belied the stance of the complainant regarding the time of occurrence---In order to ascertain as to whether the deceased received firearm injuries at 09:00 p.m. or earlier, it was essential to go through the opinion of the doctor, who, at the time of postmortem examination, mentioned the time between injury and death from one to one and half hours---As the witnesses were in conflict regarding the survival of the deceased after receiving the firearm injuries and when the doctor mentioned the time between injury and death as 1-½ hours, then the statements of all the said three witnesses when placed in juxtaposition, no other opinion could be formed, but that the incident did not occur at the stated time---Appeal against conviction of accused was allowed accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Conflict between statements of witnesses and site plan---Accused were charged for committing murder of the son of the complainant by firing---Both the witnesses i.e. the complainant and the eye-witness did not support each other regarding the place where the deceased died, as the complainant stated that soon after receiving firearm injuries, the deceased fell on the ground, and so did the eye-witness, but the complainant never stated that after receiving firearm injuries, the deceased rushed back and fell at point No. 1A---Conflict between the statements of witnesses and the site plan left no ambiguity to hold that the deceased received firearm injury at point No. 1A and not at point No. 1---Appeal against conviction of accused was allowed accordingly.

(e) 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 son of the complainant by firing---Record showed that it was after 12:00 midnight that the Investigating Officer visited the spot after receiving copy of the FIR---To be more specific, the Investigating Officer, visited the spot on 04.08.2014 as the FIR was registered after 12:00 hours in the night---Witnesses were examined who stated that the Investigating Officer recorded their statements on 04.08.2014,whereas, the record told that their statements under S. 161, Cr.P.C., were recorded on 03.08.2014---Prosecution had to explain that when the FIR was yet to be chalked out, then how the Investigating Officer visited the spot and recorded statements of the witnesses---Record showed that the date of preparation of site plan was mentioned as 03.08.2014, whereas, later on, the same was tampered and rectified as 04.08.2014---Overall situation had created an atmosphere of confusion which the prosecution failed to resolve---Appeal against conviction of accused was allowed accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention--- Appreciation of evidence---Benefit of doubt---Postmortem conducted before reporting the matter---Accused were charged for committing murder of the son of the complainant by firing---Record showed that the dead body was brought before the Medical Officer for postmortem examination at 11:00 p.m., by which time no report was made---Medical Officer stated that he started postmortem examination of the dead body at 11:00 p.m. and completed the same at 11:30 p.m.---Medical Officer when appearing before the Trial Court stated that at 11:00 p.m., the dead body was brought before him along with injury sheet and inquest report---Statement of the Medical Officer did not find support from record of the case, as, by then, the report was not made---Surprisingly when the matter was reported at 11:15 p.m., how the Medical Officer could lay hands on the injury sheet and inquest report, as the same were admittedly prepared after the Murasila was drafted---All the said anomalies when taken into consideration, coupled with the column of identification, where neither the complainant nor the eye-witness stood as identifiers, an inference could be drawn that either the dead body was shifted to the hospital by the co-villagers, where the injury sheet and inquest report were prepared and by then the report was not made, as the complainant was not available, or the complainant was searching for the real culprits, who killed the deceased, and that it was after consultation and deliberation that the accused persons were charged for the death of the deceased---Appeal against conviction of accused was allowed accordingly.

(g) 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---Conflict between---Accused were charged for committing murder of the son of the complainant by firing---In the present case, the medical evidence did not support the case of the prosecution---Medical Officer admitted that the deceased received injuries on the vital parts of his body, and such statement got support from the postmortem report---Postmortem report told that the most vital organs of the body of deceased were damaged---If such was the precarious condition of the deceased at the time of incident, then, it could not be accepted that the deceased could run from point No. 1 to point No. lA of the site plan, and even if he did so then between the two places the Investigating Officer would have shown the trail of blood---Conflict between the medical evidence and ocular account had damaged the prosecution case beyond repair---True that the medical evidence was confirmatory in nature and in case of availability of strong eye-witness account, it played little role---In case where the witnesses failed to establish their presence on the spot then in that eventuality, it would become obligatory that the medical evidence must be respected and appreciated---In case in hand, the witnesses failed to establish their presence on the spot at the time of incident, so the medical evidence was to play the decisive role and as such, the conflict between the two had created dents in the prosecution story---Appeal against conviction of accused was allowed accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention--- Appreciation of evidence--- Benefit of doubt--- Safe custody of crime empties not proved---Accused were charged for committing murder of the son of the complainant by firing---Record showed that the Investigating Officer collected 21 empties of 7.62 bore from the place of incident---Surprisingly, the said empties were not sent to the firearms expert soon after its recovery, rather the same were received at the laboratory after a considerable delay of 34 days, which the prosecution failed to explain---Investigating Officer did not record the statements of independent witnesses regarding the safe custody of the collected empties and even no record was collected from the concerned police station as to where these empties were lying---Neither the Muharar of the concerned police station was produced nor the Police Official who took the same to the firearms expert---When safe custody of the collected empties could not be proved on record, then in such eventuality, said piece of evidence could not be taken into consideration and as such, it had lost its evidentiary value---Circumstances established that the prosecution failed to bring home guilt against the accused persons---Appeal against conviction of accused was allowed accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention--- Appreciation of evidence---Benefit of doubt---Absconsion of accused---Inconsequential---Accused were charged for committing murder of the son of the complainant by firing---Attempt was made to convince the Court that the long abscondance of the accused persons was a sufficient factor to help in their conviction, but abscondance was a circumstance which could be of benefit to the prosecution, provided the prosecution succeeded in establishing its case against the accused, but when the prosecution was lacking evidence, then abscondance had little role to play---In case in hand, as the witnesses could not succeed in establishing their presence on the spot and the mode and manner was still shrouded in mystery, so the abscondance could not be taken into consideration, that too, to convict the accused persons---Appeal against conviction of accused was allowed accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused were charged for committing murder of the son of the complainant by firing---Motive was alleged as oral altercation between the accused persons and the deceased a few days earlier to the incident---Complainant could not bring on record any substantial evidence in that respect and even the Investigating Officer did not record the statements of independent witnesses in support of the alleged motive---Except mere oral assertion by the complainant, no positive evidence was produced in respect of the motive, thus, the Court had no other option, but to hold that the prosecution failed to establish the motive---True that absence or weakness of motive, in itself, was not sufficient to dislodge the prosecution story, but at the same time, it could not ignore its importance, more particularly in the given circumstances of the present case---As the reason to kill was the altercation between the deceased and accused, so the liability of the prosecution was more than ordinary cases since the complainant failed to convince the Court through reliable witnesses that a day earlier to the incident an altercation took place between the parties, the Court was not hesitant to hold that the charge against the accused persons was the outcome of consultation and deliberation---Appeal against conviction of accused was allowed accordingly.

Salah-ud-Din Khan and Inam Ullah Khan Marwat for Appellants.

Haji Hamayun Khan Wazir for Respondents.

Sardar Muhammad Asif, Asstt: A.G. for the State.

2023 Y L R 1683

[Peshawar]

Before Rooh-ul-Amin Khan and Sahibzada Asadullah, JJ

NASEER AHMAD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 541-P of 2018, decided on 22nd December, 2022.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Presence of the eye-witnesses at the time and place of occurrence doubtful---Accused was charged for committing murder of the brother of the complainant by firing---Motive was alleged to be money dispute between the accused and the deceased---Presence of the eye-witness did not appeal to a prudent mind, as he displayed an unnatural conduct---Had the eye-witness been present and had the deceased been present and had the deceased been fired at by the accused, then in the first available opportunity, he would try to catch hold of the accused and on the second, he would have rushed the deceased, who was lying in critical condition, to the hospital and would have reported the matter---Neither the eye-witness identified the dead body at the time when the report was made nor at the time when inquest report was prepared and the postmortem was conducted---Circumstances established that the prosecution had proved its case against the accused but due to mitigating circumstances, the life imprisonment was converted into imprisonment for ten years---Appeal was partially allowed by modifying the sentence.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Motive not proved---Accused was charged for committing murder of the brother of the complainant by firing---Record showed that the eye-witness remained consistent that it was an amount of Rs. 31,000/- which was to be paid by the accused to the deceased, as the deceased had fixed a UPS for the house of the accused, but wife of the accused/witness explained the motive in a different manner---Said witness stated that an amount of Rs. 31,000/- was outstanding against the accused, as the deceased had fixed the UPS for her house and that an amount of Rs. 55,000/- was outstanding against the accused, as accused had purchased a motorcycle from the deceased and it was the accused who had to pay the outstanding amount---Neither the Investigating Officer nor the scribe, at the time of drafting the murasila, could recover the same amount from possession of the deceased and even the witnesses did not produce the amount so paid---When on one hand, the witnesses admitted that the amount was paid to the deceased then on the other, it was a must that either the same would have been produced or would have been collected, but the record was silent in that respect---When so, then the cause of killing was shrouded in mystery---Circumstances established that the prosecution had proved its case against the accused but due to mitigating circumstances, the life imprisonment was converted into imprisonment for ten years---Appeal was partially allowed by modifying the sentence.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---No premedita-tion for murder ---Accused was charged for committing murder of the brother of the complainant by firing---Admittedly when the deceased along with the eye-witness reached the spot house, the atmosphere was calm and when the deceased entered the house, no commotion was noticed---Both the sides had no intention to aggravate the situation to that extent, as on one hand, the accused had got a UPS prepared/ repaired and on the other, a complaint was raised that the same was not in working condition---When the amount was paid, there was hardly an occasion for the accused to kill the deceased, but the unfortunate parties entered into a hot altercation, which aggravated the situation to an extent that on one hand, the deceased lost his life, whereas, on the other, the accused received multiple injuries on his body---When an atmosphere of uncertainty prevailed, when the witnesses came forward with twisted facts and when the parties were involved in active concealment of the actual happenings, then no option was left except to take into consideration the quantum of sentence awarded---Thus, the sentence of accused was converted from life imprisonment to imprisonment for ten years---Appeal was partly allowed with modification in sentence.

Muhammad Abbas and Muhammad Ramzan v. The State (Jail Petition No. 355 of 2018) and Raza and another v. The State and others 2020 SCMR 1185 rel.

Shabbir Hussain Giyani for Appellant.

Muhammad Saeed Khan for Respondent.

Muhammad Nisar Khan, Additional A.G. for the State.

2023 Y L R 1719

[Peshawar]

Before Shahid Khan, J

NADEEM KHAN---Petitioner

Versus

MAQBALI KHAN KHALIL and 2 others---Respondents

Writ Petition No. 2634-P of 2022, decided on 22nd August, 2022.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Eviction of tenant---Scope---Concurrent orders for ejectment--- Validity--- Relationship of tenant and landlord had not been denied---Tenant had not complied with the order passed by Rent Controller for deposit of the tentative rent arrears coupled with the deposit of regular monthly rent---Rent Controller had rightly exercised the jurisdiction under S. 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959---Constitutional petition was dismissed.

Muhammad Irshad Mohmand for Petitioner.

Ahmad Saleem Khan for Respondents.

2023 Y L R 1743

[Peshawar (Abbottabad Bench)]

Before Fazal Subhan, J

ISHAQ KHAN---Appellant

Versus

RABINA ASIF---Respondent

R.F.A. No. 42-A of 2022, decided on 15th February, 2023.

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

----Ss. 17(8) & 17(9)---Eviction of tenant---Default in payment of rent and sub-letting---Order of the Rent Controller to deposit interim rent, non-compliance of---Scope and effect---Ten (10%) annual increase in monthly rent was incorporated in the rent agreement made between the parties---Rent Controller issued specific order, against the tenants, under S. 17(8) of the Cantonment Rent Restrictions Act, 1963, ('the Act 1963') directing not only to deposit arrears of rent spanning last 13 (thirteen) years but also to deposit an amount comprising 10% annual increase in monthly rent as per agreement---Tenants/appellants did not comply with the order regarding 10% annual increase amount---Rent Controller struck down the defence of tenants/appellants under S. 17(9) of the Act, 1963 and passed eviction order---Held, that Ss. 17(8) & 17(9) of the Act, 1963, in view of the word "shall" used therein, were mandatory in nature and tenants/appellants were required to comply with the specific order in letter and spirit for the reason that the said provisions carried a penalty of striking down of the defence of tenants---No proof was brought on record by the tenants/appellants that they, in addition to rent, had also deposited 10% annual increase amount---Due to non-compliance of specific order, they (tenants) had committed willful default and the Rent Controller was justified to strike down their defence and to order their eviction---No illegality or infirmity was found in the eviction orders passed by the Rent Controller---Appeals were dismissed, in circumstances.

M.H. Mussadaq v. Muhammad Zafar Iqbal and another 2004 SCMR 1453 and Dr. Muhammad Safdar v. Mst. Shaista Amjad 2015 MLD 1342 ref.

Mrs. Sehrish Habib Dilazak for Appellant.

Muhammad Ayub Awan for Respondent.

2023 Y L R 1761

[Peshawar]

Before Fazal Subhan, J

GOHAR ALI---Appellant

Versus

The STATE---Respondent

Criminal Revision No. 98-P of 2022, decided on 2nd August, 2022.

(a) Foreign Exchange Regulation Act (VII of 1947)---

----Ss. 4, 3-A & 23---Anti-Money Laundering Act (VII of 2010), Ss. 3 & 4---Criminal Procedure Code (V of 1898), S. 516-A---Restrictions on dealing in foreign exchange---Authorized money changers in foreign currency---Money laundering--- Return of confiscated currency---Scope---Petitioner assailed the dismissal of his application for return of confiscated foreign currency---Sufficient material was available on record to show that the foreign currency was recovered from the motorcar occupied by two accused, who had given affidavit that the foreign currency was given to them for exchange---No permission or authorization of State Bank was available with the petitioner---This being the situation, the two conditions of last possessor and bona fide ownership of the petitioner were not forthcoming, and therefore the impugned order was neither found to be illegal nor perverse, hence the impugned order was maintained---Revision petition was dismissed, in circumstances.

(b) Foreign Exchange Regulation Act (VII of 1947)---

----S. 3-A---Constitution of Pakistan, Art. 18---Freedom of trade, business or profession---Authorized money changers in foreign currency---Scope---Every citizen of the country has the right of freedom of trade, business or profession---Such freedom is however subject to the condition that person carrying such profession must have required qualification and the trade/business must be lawful---To conduct a legal business of foreign currency, a person has to seek permission and authorization under S. 3-A of the Foreign Exchange Regulation Act, 1947, from the State Bank.

The State through Director General FIA, Islamabad v. Alif Rehman 2021 SCMR 503 rel.

Atta Ullah Khan for Petitioner.

Qazi Babar Irshad, Deputy Attorney General along with Muhammad Arif, Sub-Inspector, FIA, Mardan for the State.

2023 Y L R 1786

[Peshawar (Bannu Bench)]

Before Sahibzada Asadullah and Muhammad Faheem Wali, JJ

GHULAM JAN---Appellant

Versus

The STATE---Respondent

J. Cr. A. No. 109-B of 2022, decided on 12th January, 2023.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Ocular account duly supported by witnesses---Prosecution case was that forty four packets of charas, total weighing 55893 grams, were recovered from the secret cavities of the truck driven by the accused---Record showed that the complainant narrated the same story as mentioned in the FIR---Said witness was cross-examined by the defence, but nothing detrimental to the prosecution case could be extracted from his mouth---Witness was examined regarding his arrival on the spot, the manner in which the vehicle was signaled to stop and the mode of recovery from the vehicle---In order to know as to whether the complainant was telling the whole truth and as to whether the incident occurred in the mode, manner and the stated time, statement of recovery witness was also recorded---Said witness was cross-examined on material aspects of the case, but he remained consistent to what the complainant stated---Manner in which the complainant left the Police Station was fully supported by the marginal witness and even the manner in which the recoveries were effected from the vehicle---Investigating Officer stated that on receiving copy of the FIR, he visited the spot---On reaching the spot, he was handed over sealed sample parcel by the complainant for the purpose of chemical analysis and parcel containing the remaining charas recovered from the accused---Investigating Officer took into possession the same along with the truck vide recovery memo duly attested by marginal witnesses---Said witness prepared site plan at the instance of the complainant and the statements of the witnesses were recorded---Investigating Officer was cross-examined on material aspects of the case, but nothing detrimental could be brought on record to shatter the prosecution case---Circumstances established that the prosecution had successfully proved the charges against accused---Appeal against conviction was dismissed accordingly.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Samples---Safe custody of samples and their transmission to the Chemical Examiner established---Prosecution case was that forty four packets of charas, total weighing 55893 grams, were recovered from the secret cavities of the truck driven by the accused---Muharrir of the Police Station stated that he was handed over by the Investigating Officer sample parcels and parcel of remaining charas along with application for transmitting the parcels to Forensic Science Laboratory for chemical analysis which he kept in safe custody of the Malkhana---Said witness stated that he handed over the sample parcels, 44 in number, along with application and route certificate to Police Constable for taking the same to the laboratory which he did and on return, he was handed over by him a receipt/route certificate---Similarly, a Police Constable was examined, who stated that Muharrir of the Police Station handed him over 44 sample parcels along with route certificate; he took the same to the Forensic Science Laboratory, where he handed it over to the officer concerned and brought the receipts back to the Police Station, which he handed over to the Muharrir---Both the said witnesses were subjected to lengthy cross-examination, but they remained in harmony with each other as far as the date, time and mode and manner of transmission and handing over of the parcels were concerned and nothing detrimental could be brought out from their mouth---It was for the prosecution to prove on record the safe custody of the recovered substances, right from its recovery till its sending to the Police Station---In the present case it was established on record and that both the said witnesses were examined for that particular purpose, but no inconsistency could be found within their statements---Not only the prosecution succeeded in proving the safe custody of the contraband in the Police Station, but also the witness, who took the test samples to the office of the Chemical Examiner, explained the minute details of his departure to the office of the Chemical Examiner---Circumstances established that the prosecution had successfully proved the charges against accused---Appeal against conviction was dismissed accordingly.

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

----S. 9(c)--- Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4 & 5---Possession of Charas---Appreciation of evidence---Delay in sending the sample for analysis---Inconsequential---Prosecution case was that forty four packets of charas, total weighing 55893 grams, were recovered from the secret cavities of the truck driven by the accused---Defence objected that the sample parcels were dispatched to the Forensic Science Laboratory beyond 72 hours of its seizure and as such, Rule-4 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, had been blatantly violated, which, in turn, not only overshadowed its safe custody, but also impaired and vitiated the conclusions and reliability of the report of the Government Analyst, thus, rendering it incapable of sustaining conviction--- Validity--- Said objection had no force, as on one hand, the Muharrir while recording his statement had plausibly explained the delay to the effect that he received the sample parcels after the Investigating Officer arrived at the Police Station and that there were holidays on 21st, 22nd and 23rd of March, 2020, so he handed over the same to Police Constable, on 24.03.2020, whereas, on the other, the said Rule was directory in nature and not mandatory and any lapse in compliance thereof did not automatically discard the whole prosecution case, particularly when safe custody was otherwise proved as in the instant case---Circumstances established that the prosecution had successfully proved the charges against the accused---Appeal against conviction was dismissed accordingly.

Liaquat Ali and another v. The State 2022 SCMR 1097 rel.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence--- Minor discrepancies in the statements of witnesses---Inconsequential---Prosecution case was that forty four packets of charas, total weighing 55893 grams, were recovered from the secret cavities of the truck driven by the accused---Defence referred to some minor discrepancies in the statements of the witnesses, but they were not of such a nature, which could be pressed into service to dislodge the trustworthy eye-witness account of the witnesses on one hand and the inherent worth of the collected material, on the other---Defense could not bring on record as to what mala fide either the complainant or the Investigating Officer or even any other Police Official had against the accused to charge him for commission of the offence and to plant such a huge quantity of narcotics against him---Moreso, it could not be ignored that the recovery was effected way back in the year 2020, whereas, the witnesses faced the test of cross-examination after an extensive length of time in the year 2021, so minor contradictions with regard to the timings as to when the information was received, when the Investigating Officer reached to the spot and when they left the same were bound to occur, as the Police Officials were and are conducting similar proceedings on day to day basis and it would be unnatural to expect them to answer with exactitude the timings, without any difference of even minutes---Minor contradictions with regard to timings suggested that the Police Officials had no animosity with the accused or interest in his prosecution with mala fide, since had it been so, the minor contradictions of timings would not have happened, rather the witnesses would have enabled themselves to reply with exactitude as experienced in some other criminal cases---Circumstances established that the prosecution had successfully proved the charges against accused---Appeal against conviction was dismissed accordingly.

Shamsher Ahmad and another v. The State and others 2022 SCMR 1931 rel.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Driver of vehicle carrying narcotics---Conscious knowledge and possession of the recovered substance---Scope---Prosecution case was that forty four packets of charas, total weighing 55893 grams, were recovered from the secret cavities of the truck driven by the accused---Record showed that at the time of arrest, it was the accused who was driving the vehicle and that no other person was present therein, so no ambiguity was left to hold that the accused was in full control of the vehicle and that he had the conscious knowledge and possession of the recovered substance, more particularly, when the same was recovered from its secret cavities---Right from the first day till conclusion of the trial, no one appeared to claim ownership of the vehicle, which aspect further confirmed that the vehicle was possessed at the crucial time by no other person, but the accused and it was he who was attempting to transport the contraband after concealing the same in its secret cavities---Circumstances established that the prosecution had successfully proved the charges against accused---Appeal against conviction was dismissed accordingly.

Kashif Amir v. The State PLD 2010 SC 1052 and Syed Karam Hussain Shah and others v. The State and others 2019 MLD 1445 rel.

Sawal Nazir Khan for Appellant.

Sardar Muhammad Asif, Asstt: A.G. for the State.

2023 Y L R 1855

[Peshawar]

Before Ishtiaq Ibrahim, J

HASSAN SHAH alias CHOUDHRY and another---Appellants

Versus

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

Criminal Appeal No. 1123-P of 2022, decided on 27th February, 2023.

(a) Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019)---

----Ss. 9(d) & 11(c)---Criminal Procedure Code (V of 1898), S. 103---Trafficking of narcotics, possession of methampheta-mine and heroin---Appreciation of evidence--- Sentence, reduction in---Receiving made from a narcotics den--- Non-association of private witnesses---Not required---Accused was found in possession of 1300 grams ICE and 1300 grams heroin and other accused was also found in possession of 1350 grams ICE, whereas the third accused was found in possession of 150 grams ICE and a pistol---Defence contended that the place of occurrence was raided in violation of S. 103 Cr.P.C.---Validity---In S. 31 of Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019, it was specifically mentioned that the provisions of S. 103, Cr.P.C. were to be strictly complied with only in case of dwelling house---Nothing was available on record to show that the place of occurrence was a dwelling house rather the same as per prosecution was a den of narcotic---Dwelling house is a place or building which is actually and principally used for human residence---Accused persons in their statements under S. 342, Cr.P.C., admitted that the place of occurrence was an Adda (Den) and not a dwelling house---Thus, non-compliance of the provision of S. 103, Cr.P.C., would not vitiate the recovery proceedings---Circumstances established that the prosecution had proved its case against the accused persons beyond shadow of reasonable doubt, however, accused persons were first time offenders and there was nothing on record that they were previously involved in such like cases and due to certain shortcomings and negligible inconsistencies in the evidence which would have bearing on the quantum of sentence, their sentences were reduced from fourteen years to ten years and from ten years to three years respectively---Appeal was dismissed with said modification in sentences.

(b) Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019)---

----Ss. 9(d), 11(c) & 27---Trafficking of narcotics, possession of methampheta-mine and heroin---Appreciation of evidence---Sentence, reduction in---Warrant not obtained from the competent Court of law---Accused was found in possession of 1300 grams ICE and 1300 grams heroin and other accused was also found in possession of 1350 grams ICE, whereas the third accused was found in possession of 150 grams ICE and a pistol---Defence objected that warrant under S. 27 of Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019, was not obtained from the competent Court of law---Validity---Information was received by the police while they were on routine patrol and thereafter they straightaway rushed to the place of occurrence---At times law enforcing agencies were left with no choice but to conduct raid for the reason that any sort of delay would give time to the culprits to leave the place of occurrence or to dispose of the incriminating articles---In the present situation the raid had been conducted according to law by considering the facts and circumstances of the case---In addition to that, the provisions of S. 27 of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019, and Ss. 20 & 21 of Control of Narcotic Substances Act, 1997, were almost identical to each other and said provisions were directory and not mandatory in nature---Furthermore, S. 28 of the Act, 2019, subject to proviso of subsection (1) of S. 27, empowered Authorized Officer to enter any building, place, premises, dwelling house or conveyance on receipt of information or knowledge, if he is of the opinion that narcotic substances is kept or concealed, and obtaining search or arrest warrant from the Special Court will give opportunity for concealment of evidence or facility for escape to any person involved in commission of offence---Compliance of proviso of subsection (1) of S. 27 was also not attracted in the present case---Circumstances established that the prosecution had proved its case against the accused persons beyond shadow of reasonable doubt, however, accused persons were first time offenders and there was nothing on record that they were previously involved in such like cases and due to certain shortcomings and negligible inconsistencies in the evidence which would have bearing on the quantum of sentence, their sentences were reduced from fourteen years to ten years and from ten years to three years respectively---Appeal was dismissed with said modification in sentences.

Zafar v. The State 2008 SCMR 1254 rel.

(c) Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019)---

----Ss. 9(d) & 11(c)---Trafficking of narcotics, possession of methampheta-mine and heroin---Appreciation of evidence---Sentence, reduction in---Safe custody and transmission of recovered substance for analysis established---Accused was found in possession of 1300 grams ICE and of 1300 grams heroin and other accused was also found in possession of 1350 grams ICE, whereas the third accused was found in possession of 150 grams ICE and a pistol---Samples were received in the Forensic Science Laboratory on the very next date of the recovery, therefore, possibility of tampering or manipulation was ruled out---Complainant had stated that he had himself brought the samples of the contraband narcotics to the Police Station and the same were handed over to Moharrir and the Moharrir had handed over to Constable for onward transmission to the Forensic Science Laboratory---Thus, the prosecution was able to establish the recovery of contraband from possession of the accused persons---Furthermore, the safe custody and transmission of the samples right from the place of recovery to Forensic Science Laboratory was also established---Circumstances established that the prosecution had proved its case against the accused persons beyond shadow of reasonable doubt, however, accused persons were first time offenders and there was nothing on record that they were previously involved in such like cases and due to certain shortcomings and negligible inconsistencies in the evidence which would have bearing on the quantum of sentence, their sentences were reduced from fourteen years to ten years and from ten years to three years respectively---Appeal was dismissed with said modification in sentences.

(d) Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019)---

----Ss. 9(d), 11(c) & 27---Trafficking of narcotics, possession of methampheta-mine and heroin---Appreciation of evidence---Sentence, quantum of---Accused was found in possession of 1300 grams ICE and 1300 grams heroin and other accused was also found in possession of 1350 grams ICE, whereas the third accused was found in possession of 150 grams ICE and a pistol---Record showed that the accused persons were first offenders and there was nothing on record that they were previously involved in such like cases---Moreover, there were certain short comings and negligible inconsistencies in the evidence which would have bearing on the quantum of sentence only and not on the guilt of the accused persons, therefore, conviction of the accused persons under S. 9-D of the Act, 2019, was maintained, however, their conviction and sentence under S. 11-C of the Act, 2019, was reduced from fourteen (14) years rigorous imprisonment to ten (10) years rigorous imprisonment---Quantity of narcotic recovered from the third accused was a borderline case between Ss.11-A & 11-B of the Act, 2019, therefore his sentence was reduced from ten years to three years---Appeal was dismissed with said modification in sentences.

Malik Mushtaq Ahmad for Appellants.

Muhammad Inam Khan Yousafzai, A.A.G. for the State.

2023 Y L R 1930

[Peshawar ]

Before Ishtiaq Ibrahim and Shahid Khan, JJ

NAIK AWAZ and another---Appellants

Versus

The STATE---Respondent

J. Crl. Appeal No. 1147-P of 2021, decided on 3rd August, 2022.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Presence of complainant at the time and occurrence was doubtful---Accused were charged that they made firing upon the complainant party, due to which the complainant and two of his relatives were hit and one of them died---Presence of the complainant party at the scene of occurrence at the fateful time was alleged to be on account of routine gossip---Close perusal of the site plan would transpire that the members of the complainant party including the deceased had been shown at a considerable distance from each other, whereas, in case of informal conversation or gossip, members of the subject company were supposed to be close and well connected so that they could communicate their respective chat easily---However, the in between distance of the victims reflected in the site plan, prima facie was not so close to mutually communicate the gossip---Other than this shops and residence do figure in the site plan but instead of the same the complainant party opted to gossip on the main road highlighted in the site plan---Likewise, the Investigation Officer on his visit to the scene of occurrence did not highlight in his preliminarily investigation report/site plan either the seating arrangement of the members of the complainant party nor the seating articles---Strong presumption could not ruled out that the same had not been highlighted/disclosed to the Investigation Officer, therefore, it did not figure at all in the investigation---Such infirmity touched the roots of the prosecution's case---In such circumstances, it was hard to believe the very presence of the complainant at the fateful time as the reason of his presence did not appeal to a prudent mind coupled with the culture and tradition of the locality according to which gossiping in a thoroughfare was avoided---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of reasonable doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Medical evidence---Fitness certificate of injured not procured for recording his statement---Accused were charged that they made firing upon the complainant party, due to which the complainant and two of his relatives were hit and one of them died---Complainant, an injured victim on his shifting to hospital, had been examined by the Medical Officer followed by report/remarks on his injury sheet---Subject report spoke loud and clear about his injury as firearm injury on his left thigh, however, it had been categorically observed that the patient (complainant) was disoriented in time and place---As a result of the subject injury heavy blood loss could occur, therefore, the observation of the Medical Officer regarding the physical status of complainant as disoriented in time and place was of paramount consideration---Likewise, the Duty Police Officer/ Incharge Casualty Civil Hospital, while drafting the report of the complainant was not able to procure proper fitness certificate from the Medical Officer as due endorsement on the Murasila at least in terms that the complainant was well oriented in time and place and fit to communicate his version safely---Not obtaining the subject observation from the Medical Officer either on a Murasila or through a proper endorsement, left behind scope for the preposition that the report in question might not be the version of the complainant because of the severity of his injury---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of reasonable doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b), 324, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---With-holding material evidence---Brother of deceased not examined---Accused were charged that they made firing upon the complainant party, due to which the complainant and two of his relatives were hit and one of them died---In the present case, name of Mr. "S" figured in the calendar of the witnesses and his presence was reflected in site plan---Said witness was brother of the victims, and during the investigation he had been associated and his account had been recorded under S. 161, Cr.P.C. but for reasons best known to the prosecution he had not been examined in support of the case---Strong presumption could not be ruled out that the subject star witness of the prosecution being the brother and closely related to deceased did not support the prosecution's case, therefore, his account had not been furnished at all---So, in the situation, adverse inference under Article 129(g) of Qanun-e-Shahadat, 1984, could be safely drawn---Even otherwise, in such situation legal inference could also be drawn that if the said witness had entered into the witness box then he would not have supported the prosecution case---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of reasonable doubt---Appeal against conviction was allowed accordingly.

2021 YLR 163 and 2006 SCMR 1846 rel.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Recovery of crime empties from the place of occurrence not sent to Forensic Laboratory---Accused were charged that they made firing upon the complainant party, due to which the complainant and two of his relatives were hit and one of them died---In the present case, it was transparent from the record that in the first information report complainant reported the event against five persons as they had been nominated for the commission of offence to the effect that as a result of fire shots of the said accused three persons were hit and injured whereas the eye-witness Mr. "S" made his escape good---Occurrence was attributed to five assailants armed with lethal weapons but the number of empties secured from the scene of occurrence were eleven in number---Event was alleged to be outcome of five persons but nothing as such had been brought on record as to whose shots proved fatal---Likewise, the crime empties secured from the scene of occurrence had not been sent to Forensic Science Laboratory so as to verify the fact as to whether they had been fired from a single or multiple weapons---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of reasonable doubt---Appeal against conviction was allowed accordingly.

(e) Criminal trial---

----Benefit of doubt---Principle---Single circumstance creating doubt in the prudent mind about the guilt of the 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.

Astaghfirullah for Appellants.

Niaz Muhammad, A.A.G. for the State.

Shabir Hussain Gigyani for the Complainant.

2023 Y L R 1942

[Peshawar (Abbottabad Bench)]

Before Syed Arshad Ali and Kamran Hayat Miankhel, JJ

ZAFAR ALI---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 140-A of 2020, decided on 22nd June, 2022.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Safe custody and transmission of narcotics to Forensic Laboratory not established---Effect---Prosecution case was that 90486 grams charas in 80 slabs was recovered from the secret cavities of the vehicle of the accused---Scanning of prosecution evidence showed that complainant stated in his examination in chief that he sent the case property along with accused under the escort of constable and under the supervision of ASI in the official vehicle---ASI stated in examination in chief that he was marginal witness of recovery memo. vide which complainant during the course of gasht recovered charas from secret cavities of vehicle---Said witness simply stated in his cross-examination that they took the documents, case property and accused in the official pick-up and did not depose about the handing over the case property to Moharrir---More so, Police Constable stated in his statement that the police station handed over parcels Nos.1 to 80 of the instant case for onward transmission to Forensic Science Laboratory but the prosecution had not produced and examined, neither Constable to whom parcels Nos. 1 to 80, containing samples for Forensic Science Laboratory, were entrusted for submission to Moharrir for safe custody from spot to police station nor Moharrir was produced as witness---Non-production of said witnesses led to only one corollary that chain of safe custody had not been proved by the prosecution---Prosecution also by not producing as witness the Moharrir, who handed over the samples to constable put a serious dent in the prosecution case about safe custody of contraband---Safe custody and its transmission to police station and later its transmission to Forensic Science Laboratory was of utmost and paramount importance---In case of failure the whole superstructure built on the recovery of contraband would fall to the ground---Trial Court had erred in appreciating the case evidence in its true perspective---Circumstances established that the prosecution had not been able to prove its case beyond reasonable doubt, therefore, the impugned judgment warranted interference---Appeal was allowed and the accused were acquitted from the charges levelled against them by extending them benefit of doubt.

2021 SCMR 451; Imam Baksh's case 2018 SCMR 2039; Zubair Khan v. The State 2021 SCMR 492 and Mst. Razia Sulana v. The State 2019 SCMR 1300 rel.

(b) Criminal trial---

----Benefit of doubt--- Principle---Reasonable doubt found in the prosecution case would be sufficient to acquit an accused.

(c) Criminal trial---

----Benefit of doubt---Principle---For extending the benefit of doubt, it is not necessary that there should be many circumstances creating doubts---Single circumstance, creating reasonable doubt in the 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(sic) rel.

Ms. Farhana Naz Marwat for Appellant.

Sardar All Raza, A.A.G. for the State.

2023 Y L R 1967

[Peshawar (Abbottabad Bench)]

Before Wiqar Ahmad and Kamran Hayat Miankhel, JJ

IQBAL KHAN---Appellant

Versus

Mst. SHEHNAZ BIBI and another---Respondents

Criminal Appeal No. 254-A of 2021, decided on 27th March, 2023.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Presence of eye-witnesses at the spot proved---Accused was charged for committing murder of the son of complainant by firing during an altercation---Ocular account of the incident had been furnished by two eye-witnesses---Record showed that presence of eye-witness had been mentioned by complainant while lodging first report of the occurrence---Inquest report also indicated his presence at the time of handing over dead body of the deceased at the hospital---In the site plan, Investigating Officer of the case had also marked his presence---Site plan had also been prepared on joint pointation of both the eye-witnesses---Statement of one of the eye-witnesses had been recorded under S. 161, Cr.P.C. on the first day of occurrence while statement of other eye-witness had been recorded by the Investigating Officer on second day of occurrence---In such circumstances, mere omission to name the other eye-witness in S. 161, Cr.P.C. statement of eye-witness would not make much difference---Statement of other eye-witness had also remained fully consistent and confidence inspiring---Presence of both the eye-witnesses stood well established---Testimonies of said witnesses had also remained consistent inter se regarding the mode and manner of occurrence---Same was also corroborated by arrest of the accused on the day of occurrence along with a licensed .30-bore pistol recovered vide recovery memo---Two empties of .30-bore, recovered vide recovery memo. from the spot, had also been sent to Forensic Science Laboratory for the purpose of comparison, and report received there from was in affirmative providing sufficient corroboration to case of prosecution--- Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Substitution unlikely--- Accused was charged for committing murder of the son of complainant by firing during an altercation---Record showed that it was a case of single accused to whom complainant had not been inimical earlier---No reason existed for substituting the accused for the real culprit---Substitution in such like cases was a rare phenomena---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Muhammad Sadiq v. The State 2022 SCMR 690 rel.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence--- Transferred malice---Scope---Accused was charged for committing murder of the son of complainant by firing during an altercation---Evidence of prosecution had remained fully consistent against the accused, establishing his culpability beyond reasonable doubt---Case of the prosecution was supported by Medico-Legal evidence and also corroborated by evidence of recovery of weapon of offence and its matching Forensic Science Laboratory Report---Trial Court had rightly found accused guilty for commission of the offence and accordingly convicted him under S. 302(b), P.P.C.---More so, there remained no doubt about the criminal liability ensued by the accused for committing Qatl-i-amd---As per story of prosecution, accused did not have any motive for killing the deceased and had in fact been aiming his pistol on eye-witness/son of complainant for killing him but due to fate or missing of fire the deceased was done to death---Accused had in fact intended to kill said eye-witness but had killed deceased in the affair---In fact, it was a case of transferred malice for which legislature had already put in place S.301, P.P.C.---Law had left no room for doubt that if a person intended to kill one person but killed another as the result of firing so made, he would be treated to have committed qatl-i-amd of the deceased---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

R v. Gnango 2012 SCMR 1442; Abdullah Khan v. Sahib Dad Khan and others 1977 SCMR 186; Jagpal Singh and others v. The State of Punjab AIR 1991 SC 982 and Shankarla Kachrabhai and others v. State of Gujarat AIR 1965 SC 1260 rel.

Javed Khan Tanali for Appellant.

Sajid-ur-Rehman Khan, Assistant A.G. for the State.

Naseer Ahmad Khan Tanoli for the Complainant.

2023 Y L R 2003

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar and Shahid Khan, JJ

ALMIR---Petitioner

Versus

Mst. BANGLOW BIBI and others---Respondents

Writ Petition No. 1341-M of 2022, decided on 26th April, 2023.

Family Courts Act (XXXV of 1964)---

----Ss. 17-A & 5, Sched.---Suit for recovery of maintenance allowance of minors whose father passed away---Paternal grandfather of the minors, responsibility of---Financial status of the grandfather--- Scope--- Whether the grandfather could be held liable to pay maintenance allowance to his grandchildren---Family Court ordered petitioner/grandfather to pay interim maintenance allowance to his five grandchildren @ Rs. 2000/- per month to each minor under the provision of S.17-A of the Family Courts Act, 1964 ('the Act 1964')---Contention of the petitioner/grandfather was that the Court had failed to determine his poor financial status, his old age, and him being himself dependent on his siblings---Held, that under Islamic Law, a grandfather could be held liable to pay maintenance allowance to his grandchildren if certain conditions were met---In general, under Islamic Law, maintenance (nafqah) was a right which was granted to certain family members including children, parents and spouses---Said right required that person who was responsible for providing maintenance, usually the father or husband, must provide financial support to the dependent family members to cover their basic needs such as food, clothing, and shelter---As for the case of grandchildren, the responsibility for providing maintenance fell first on their father, and if he was unable to provide or was not alive, then the same fell on their paternal grandfather, which was based on the principle i.e. "nearer in degree" (qarabah) meaning that the closer family member was responsible for providing maintenance before the more distant one---However, it was important to note that the grandfather's responsibility and its extent for providing maintenance to his grandchildren was not absolute and could vary depending on the circumstances as well as various factors including the financial situation of the grandfather, the needs of the grandchildren and the availability of other sources of support---Grandfather, in some cases, could be exempt from said obligation if he was unable to provide for his own basic needs or was facing other financial difficulties---Determination of said liability of grandfather in the present case depending upon circumstances and interpretation of Islamic law, would be decided after recording evidence; and the Family Court , would decide all the aspects but in accordance with the law---Petitioner had failed to point out any illegality committed by the Family Court while passing the impugned interim order qua jurisdictional defect---Constitutional petition was dismissed in limine, in circumstances.

Haji Nizam Khan v. Additional District Judge, Lyallpur and others PLD 1976 Lah. 930; Abdullah v. Jwaria Aslam and 2 others 2004 YLR 616 and Muhammad Anwar Khan v. Sabia Khanam PLD 2010 Lah. 119 ref.

Iftkhar Ali Khan for Petitioner.

Ikram Muhammad Durrani for Respondents.

2023 Y L R 2082

[Peshawar]

Before Musarrat Hilali and Syed Arshad Ali, JJ

HAMEED ULLAH MARBLE FACTORY through Proprietor---Appellant

Versus

FEDERATION OF PAKISTAN through Federal Secretary, Finance and Revenue Division, Islamabad and 6 others---Respondents

Writ Petition No.465/P of 2022 with I.R., decided on 3rd March, 2022.

Regulation of Generation, Trans-mission and Distribution of Electric Power Act (XL of 1997)---

----Ss. 7(2)(g) & 7(3)(a)--- Constitution of Pakistan, Art. 199---Constitutional petition---Alternate remedy---Scope---Petitioner challenged the income tax/sales tax, etc reflected in his electricity bills---Validity---National Electric Power Regulatory Authority (NEPRA) has the exclusive jurisdiction to determine the tariff, rates, charges and other terms and conditions for supply of electric power service by the Generation, Transmission and Distri-bution Companies---For determination of any tariff, NEPRA follows its notified guideline and other indexes as provided in the Power Purchase Agreement, etc---Indeed, determination of tariff or other charges requires elaborate discussion considering various legal and factual factors in view of approved guideline of the Federal Government as well as NEPRA---High Court being a constitutional court has neither such expertise nor can make a probe in this matter---Although the petitioner had challenged the tariff on various legal grounds, however, for effective determination of the issue, the appropriate forum was NEPRA which under Ss. 7(2)(g) & 3(1) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, had the authority to review its orders---High Court transmitted the petition to NEPRA for its decision after hearing the parties---Writ petition was disposed of accordingly.

Umar Farooq Mohmand for Petitioner.

Qazi Babar Irshad, D.A.G. along with Siraj Muhammad, Assistant Commissioner and Sharifullah, Assistant Director (Legal) for Respondents.

2023 Y L R 2097

[Peshawar (Bannu Bench)]

Before Sahibzada Asadullah and Shahid Khan, JJ

JAVED---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal (Death) No. 244-B with Murder Reference No. 05-B of 2022, decided on 22nd March, 2023.

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

----Ss. 302(b), 324 & 337-D---Qatl-i-amd, attempt to commit qatl-i-amd, jaifah---Appreciation of evidence---Accused was charged for making firing upon daughter of the complainant, her husband and his son in law, due to which daughter of complainant died while remaining were injured---Trial Court had placed reliance on the account of complainant and injured---Account of said witnesses was direct, consistent and unequivocal in terms that the moment the accused came there, he started firing at the deceased, as a result of which, she was hit and fell down on the ground and the accused fled away---Injured also received fire arm injuries---Because of blood relation of the accused, the question of false implication could safely be excluded, whereas, the account of complainant was also direct, consistent and unequivocal on the material points coupled with the fact that his presence of the scene of occurrence at the fateful time was also natural for the reason that he was visiting house of his daughter and it was common culture and tradition of our society to pay a visit to near and dear ones as a token of love and affection on the day of celebration of social and religious occasions i.e. marriage, Eid etc.---Circumstances established that the prosecution had proved its case against the accused---Conviction of accused was maintained in circumstances---Appeal was partialy allowed.

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

----Ss. 302(b), 324 & 337-D---Qatl-i-amd, attempt to commit qatl-i-amd, jaifah---Appreciation of evidence---Sentence, reduction in---Motive not proved---Accused was charged for making firing upon daughter of the complainant, her husband and his son in law, due to which daughter of complainant died while remaining were injured---Motive of the occurrence did not figure at all either while lodging the report at the initial stage followed by the exercise of investigation and even during the trial, none of the prosecution's witnesses was able to utter a single word in that regard---On that score alone, while lodging the report, the complainant could not highlight motive for the occurrence and on his turn in the witness box nothing as such had been brought on record---Likewise, father of the deceased did furnish his account during the trial but he could also not utter even a single word in respect of the motive of the fateful incident at the earlier stage---Admittedly, that absence of motive or absence of proof of the same would be a sufficient mitigating circumstance to determine the quantum of sentence---Circumstances established that the prosecution had proved its case against the accused but failed to allege any motive behind the occurrence---Thus, the penalty of death was reduced to life imprisonment---Appeal was partialy allowed.

Mst. Nazia Anwar v. The State 2018 SCMR 911; Nadeem Ramzan v. The State 2018 SCMR 149; Haq Nawaz v. The State 2018 SCMR 21; Ghulam Muhammad v. State 2017 SCMR 2048; Saif Ullah v. State 2017 SCMR 2041 and Waris Ali v. The State 2017 SCMR 1572 rel.

Muhammad Sadiq Khan for Appellant.

Muhammad Anwar Khan Mamash Khel for Respondent.

Umar Qayum Khan, Asstt: A.G. for the State.

2023 Y L R 2110

[Peshawar (Mingora Bench)]

Before Dr. Khurshid Iqbal, J

SAID AFZAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 56-M of 2022 with Criminal Miscellaneous No. 327-M of 2022, decided on 14th February, 2023.

(a) Khyber Pakhtunkhwa Arms Act (XXIII of 2013)---

----S. 15---Criminal Procedure Code (V of 1898), Ss. 103 & 164---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Possession of unlicensed arms---Search to be made in presence of witnesses---Judicial confession---Withholding best evidence---Case property, failure to produce in Trial Court---Effect---Accused was convicted for having been found in possession of unlicensed weapon---Memo of arrest and recovery was witnessed by four witnesses---Two of them were police officials and the other two were private persons---One of the private persons had deposed that the police officials approached him, asked for his identity card and obtained his thumb impressions on blank papers and that he did not know what the police did with the papers---Police officials were as much good witnesses as any other but in this case, this view could not be subscribed to---Other private witness was not produced before the Trial Court---Case property was not produced in evidence before the Trial Court---Daily diaries in respect of departure from and arrival back into the police station were not produced---So far as confessional statement of accused was concerned, sufficient time was not given to the accused to think over his willingness to confess his guilt and the Judicial Magistrate had not recorded as to whether both the accused and co-accused were made to sit at one and the same place in the courtroom or not---Appeal against conviction was allowed, in circumstances.

Ghulam Mustafa alias Mushtaq Ali v. The State 2013 PCr.LJ 860 and Wahab Ali and another v. The State 2010 PCr. LJ 157 ref.

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

(b) Khyber Pakhtunkhwa Arms Act (XXIII of 2013)---

----S. 15---Possession of unlicensed arms---Case property, failure to produce in Trial Court---Effect---Non-production of case property is considered a material dent in the prosecution case.

Gul Dast Khan v. The State 2009 SCMR 431; Muhammad Khan and another v. The State through Arman Gul, S.H.O. and another, 2016 MLD 1850 and Ali Asghar Lashari v. The State 2019 PCr.LJ Note 53 ref.

(c) Criminal trial---

----Absconsion--- Scope--- Absconder cannot be given the benefit of his absence---Whatever the merits are, his case can only be considered after his surrender to lawful authority.

(d) Criminal trial---

----Benefit of doubt---Scope---Even a single reasonable doubt is sufficient for acquittal of an accused person.

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.

Azad Bakht Khan for Appellant.

Sohail Sultan Asst: A.G for the State.

2023 Y L R 2197

[Peshawar (Abbottabad Bench)]

Before Wiqar Ahmad, J

JAHANDAD KHAN and another---Petitioners

Versus

Mst. ROKHANA---Respondent

Civil Revision No. 110-A of 2008, decided on 12th September, 2022.

Specific Relief Act (I of 1877)---

----Ss. 8, 42 & 54---Punjab Tenancy Act (XVI of 1887) [since repealed], S. 59 [as amended by Punjab Tenancy (Amendment) Act, 1951]--- Khyber Pakhtunkhwa Tenancy Act (XXV of 1950), S. 4---Suit for recovery of possession, declaration and injunction---Occupancy tenancy--- Inheritance---Principle--- Retrospective effect---Respondent / plaintiff was daughter while petitioner/defendant was son of deceased occupancy tenant over suit land---Land was mutated in favour of petitioner/defendant in year 1938 on death of predecessor-in-interest of parties excluding respondent/plaintiff from inheritance---Respondent/plaintiff filed suit for recovery of possession, declaration and injunction to the extent of her share in suit land---Suit was concurrently decreed by two Courts below---Contentions of petitioner/defendant were that amendment introduced to S. 59 of Punjab Tenancy Act, 1887, was not applicable retrospectively and he had been depositing compensation under S. 4 of Khyber Pakhtunkhwa Tenancy Act, 1952, therefore, he had acquired exclusive right over suit land---Validity---Not only heading of S. 59 of Punjab Tenancy Act, 1887, [as amended by Punjab Tenancy (Amendment) Act, 1951] but body of main section also aimed at providing a complete code for devolution of occupancy rights of deceased occupancy tenant---With the amendment brought in year 1951 the matter of devolution which had earlier been governed by customs was to be regulated by the law of Shariat---Right of occupancy had always been treated inheritable by law---Only difference that was made by Punjab Tenancy (Amendment) Act, 1951, was to the effect of substituting governing law and changing it from customs to Shariat---Right of occupancy tenancy was always inheritable---Matter of legacy of a Muslim occupancy tenant was governed by S. 59 of Punjab Tenancy Act, 1887, [as amended by Punjab Tenancy (Amendment) Act, 1951], even if deceased occupancy tenant had died before promulgation of Amending Act, because of its retrospective effect---Payment made by brother (petitioner/ defendant) was also deemed to be made on behalf of sister, who was plaintiff before Trial Court---High Court declined to interfere in concurrent judgments and decrees passed by two Courts below---Revision was dismissed accordingly.

Mst. Musahib Khatoon and 2 others v. Mst. Begum Noor and another 1972 SCMR 530; Aslam and another v. Mst. Kamalzai and others PLD 1974 SC 207; Rab Nawaz v. Mst. Jahana PLD 1974 SC 210; Abdul Ghafoor and others v. Muhammad Sham and others PLD 1985 SC 407; Ghulam Muhammad v. Mst. Amiran Khatoon and another 1987 SCMR 1232; Sardar Muhammad Yousaf and others v. Government of Pakistan PLD 1991 SC 760; Misri through legal heirs and others v. Muhammad Sharif and others 1997 SCMR 338; Bashir Ahmad v. Abdul Aziz and others 2009 SCMR 1014; Mst. Fateh Bibi and others v. Mst. Fatma Bibi and others 2010 SCMR 760; Ghulam Haider and others v. Murad through legal representatives and others PLD 2012 SC 501; Ghulam Abbas and others v. Muhammad Shafi through legal heirs and others 2016 SCMR 1403; Khalid Mehmood and 3 others v. Umara Khan deceased through legal heirs and others 2021 YLR 391; Muzaffar Khan v. Mst. Roshan Jan and others PLD 1984 SC 394; Federation of Pakistan v. Muhammad Ishaq and others PLD 1983 SC 273; Mst. Farida and 2 others v. Rehmatullah and others PLD 1991 SC 213; Mir Afzal Khan v. Ijaz Akbar PLD 1991 SC 215; Muhammad Zubair and others v. Muhammad Sharif 2005 SCMR 1217; Mst. Gohar Khanum and others v. Mst. Jameela Jan and others 2014 SCMR 801; Khan Muhammad through legal heirs and others v. Mst. Khatoon Bibi and others 2017 SCMR 1476; PLD 1991 SC 731; Sahib Jan v. Wali Dad PLD 1961 Pesh. 9; Nasir Hussain and 3 others v. Fazal Elahi and 2 others 1988 CLC 1259 and Mst. Gohar Khanum and others v. Mst. Jamila Jan and others 2014 SCMR 801 ref.

Aqeel Sarwar Tanoli for Petitioners.

Haji Ghulam Basit for Respondents.

2023 Y L R 2237

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

MUHAMMAD ZAMAN---Appellant

Versus

The STATE through A.A.G. and another---Respondents

Criminal Appeal No. 288-M and Criminal Revision No. 97-M of 2018, decided on 17th December, 2020.

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

----Ss. 302, 324 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, attempt to commit qatl-i-amd and common intention---Appreciation of evidence---Benefit of doubt---Dishonest improvements---Identification parade not conducted ---Accused, along with others, allegedly injured the complainant and murdered the latter's uncle---Two accused, who were attributed the main role in the offence, remained absconders---Regarding the accused person's role, he was the father of the other two accused, aged 56/57 years---He was alleged to have participated in the incident as part of a common intention---Complainant's presence at the scene was not in doubt, but the veracity of his statement regarding the accused person's role could be questioned---During cross-examination, the witness changed his earlier stance, stating that the absconding co-accused entered the barber shop first, followed by the accused after five minutes---Accused was unknown to the barber before the incident---Since the barber belonged to a different village and did not know the accused by name, the prosecution should have conducted an identification parade to properly identify the accused---However, no such parade was conducted---Therefore, the testimony of barber could not be considered against the accused---Prosecution's eye-witness account lacked sufficient evidence to establish the accused person's guilt beyond reasonable doubt---Moreover, considering the presented motive, it was difficult to believe that a person of the accused's age would accompany his two much younger sons to commit such a crime without a strong motive---Prosecution failed to prove the case against the appellant beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd and common intention---Recovery of weapon and vehicle---Reliance---Accused, along with others, allegedly injured the complainant and murdered the latter's uncle---However, the indication of the place of recovery of the motorcar made by the accused and its use for the escape of the other accused from the scene, could not be relied upon---This was because a separate motorcycle, which the absconding co-accused used to arrive at the location, was also shown to be recovered from outside the barber shop---Neither the complainant nor any other eye-witness mentioned that the accused had taken the co-accused in his motorcar after the incident, and that the same vehicle was used for their escape---Moreover, the corroboratory evidence of the blood-stained stick and the motorcar could not be the sole basis for convicting the accused when there was no reliable direct evidence against him---Appeal against conviction was allowed, in circumstances.

Imran Ashraf and 7 others v. The State 2001 SCMR 424 rel.

2007 SCMR 1427 ref.

(c) Criminal trial---

----Benefit of doubt---Scope---Single circumstance creating reasonable doubt is sufficient for acquittal of an accused and it is not necessary that there must be numerous doubts in the case of prosecution.

Muhammad Khan and another v. The State 1999 SCMR 1220 ref.

Zia-ur-Rehman Tajik for Petitioner (in Criminal Appeal No. 288-M of 2018).

Haq Nawaz, Asstt. A.G. for Respondents (in Criminal Appeal No.288-M of 2018).

Sabir Shah and Rahim Zada for Respondents (in Criminal Appeal No.288-M of 2018)

Sabir Shah and Rahim Zada for Petitioner (in Criminal Revision No.97-M of 2018).

Zia-ur-Rehman Tajik for Respondents (in Criminal Revision No. 97-M of 2018).

Haq Nawaz, Astt: A.G. for Respondents (in Criminal Revision No.97-M of 2018).

2023 Y L R 2261

[Peshawar (Bannu Bench)]

Before Dr. Khurshid Iqbal, J

Mst. KHADIJA and another---Petitioners

Versus

The CONTROLLING AUTHORITY BOARD OF INTERMEDIATE AND SECONDARY EDUCATION/ CHIEF MINISTER KHYBER PAKHTUNKHWA, PESHAWAR and 4 others---Respondents

Writ Petition No. 253-B of 2023, decided on 18th April, 2023.

Constitution of Pakistan---

----Art. 199---Educational institution---Constitution of Examination Centers---Educational institution as an examination centre, declaration of---Constitutional petition---Maintainability---Petitioners (owners of an educational institution) were desirous that their educational institution be constituted as an examination center, but their request, in said regard, made at Board of Intermediate and Secondary Education ('the Board') was declined---Petitioners invoked constitutional jurisdiction of the High Court praying for the passing of directions to the Respondents/Board to constitute their educational institution as an examination center---Contention of the petitioners was that the examination centre made by the Board at another village were at a long distance and would create problems for the students of locality especially for female students---Held, that as per the relevant the rules of Board of Intermediate and Secondary Education ('the Rules') , the declaration of examination hall was a privilege of the Chairman of the Board---Application having been submitted to the Controller of the Board by the petitioners revealed that they had mentioned total 99 students of both IX and X Classes without mentioning the number of the female students ;and they did not assert that those students would suffer in case of going to the examination center in the school of another village---Total numbers of students, in the present case, did not appear to meet the target mentioned in R. 1(2) of the relevant Rules---Petitioners had not presented any documentary proof to show that earlier their institution had been declared as centre for the examination---High Court should not interfere in the internal governance of an educational institution and the constitution of an examination hall was the function of the respondents/ Authorities having the expertise, in such regard---Constitutional petition was dismissed in limine, in circumstances.

Khyber Medical University and others v. Aimal Khan and others PLD 2022 SC 92 ref.

Rahmat-ul-Haq Khanan Khel for Petitioner.

2023 Y L R 2266

[Peshawar (D.I. Khan Bench)]

Before S M Attique Shah and Sahibzada Asadullah, JJ

GHULAM MUHAMMAD---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 39-D of 2019 decided on 27th September, 2021.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Presence of complainant at the spot at the time of occurrence doubtful--- Accused was charged for committing murder of the brother of the complainant by firing in a clinic--- Record showed that the complainant could not explain that at what time and where-from they left for the clinic---Even the Investigating Officer did not explain in the site plan the presence of the daughter and even the presence of the doctor concerned---Astonishingly, the complainant, while reporting the matter, did not explain the presence of the eye-witness, and it was at the tale end of his report that he mentioned the said witness, as the eye-witness---Complainant could not explain as to whether the eye-witness disclosed his purpose on the spot and as to whether the eye-witness had reached, the moment they reached the clinic---Complainant made constant improvements and stated that soon after the deceased received the firearm injuries, he breathed his last, and thereafter, he informed his relatives who approached the place of incident and the dead body was shifted to the hospital---Surprisingly, when the complainant along with the eye-witness and other people were present on the spot, then what need was felt for the presence of the relatives---Said fact suggested that in fact the complainant was not present at the time of incident, and that it was after arrival of the dead body at the hospital that he along with the co-villagers reached the hospital---Circumstances established that the prosecution could not prove guilt of the accused---Appeal against the conviction was accordingly allowed.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence--- Benefit of doubt---Delay of one and a half hour in lodging the FIR---Effect---Accused was charged for committing murder of the brother of the complainant by firing in a clinic---Record showed that the occurrence took place at 5:30 p.m., and the report was made at 7:00 p.m., whereas the distance between the spot and the hospital was stated to be two furlongs---In such situation, there should not have been an abnormal delay and instead the dead body should have reached the hospital much earlier than the stated time---Explanation so rendered for the delay did not fit with the facts of the case---Circumstances established that the prosecution could not prove guilt of the accused---Appeal against the conviction was accordingly allowed.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Chance witnesses---Accused was charged for committing murder of the brother of the complainant by firing in a clinic---Eye-witness stated that on the day of incident, he was present at the place of occurrence owing to his personal engagement, though initially, he did not explain that what brought him to the place of incident, but it was during his cross-examination he stated that earlier he had brought wheat to the adjacent grinding mill and he was waiting as the grinding mill was closed by the time---Surprisingly, the complainant was not certain regarding the engagements the eye-witness had at the time of incident, and even the eye-witness could not explain the same---Regarding presence of the eye-witness, the Investigating Officer stated that the eye-witness did not explain the purpose of his presence and even no wheat belonging to the eye-witness was either seen or taken into possession---It was intriguing on part of the eye-witness and even the Investigating Officer that the miller was neither associated with the process of investigation, nor his name was put in the calendar of witnesses, so much so, his statement was not recorded---Eye-witness failed to explain his presence on the spot, as no relevant witness in that respect was examined---Record showed that the incident occurred on the 3rd day of Eid and it was not normal that on the 3rd day of Eid, the eye-witness ran short of flour for which he rushed to the grinding mill---Even the Investigating Officer was examined on that particular aspect of the case, who confirmed that being Friday, the grinding mill was closed---Circumstances established that the prosecution could not prove guilt of the accused---Appeal against the conviction was accordingly allowed.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd---Appreciation of evidence---Withholding best evidence---Effect---Accused was charged for committing murder of the brother of the complainant by firing in a clinic---Record showed that the scribe stated that though he drafted the murasila but the injury sheet and inquest report were prepared by one Mr. "U", on his dictation--- Surprisingly, said Mr. "U" was not produced as the prosecution witness---When Mr. "U", being the most important witness was abandoned, then what value could be attached to the documents he prepared---When the best available evidence was not produced, then prosecution had to suffer---Qanun-e-Shahadat Order, 1984, in the shape of Art. 129(g) had accorded protection to the accused and the benefit of the situation must be extended to the one charged---Circumstances established that the prosecution could not prove guilt of the accused---Appeal against the conviction was accordingly allowed.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of incriminating material from the spot---Reliance---Accused was charged for committing murder of the brother of the complainant by firing in a clinic---In the present case, the Investigating Officer visited the spot and recovered one empty of .30 bore from the place of incident along with blood stained earth from the place of the deceased---Investigating Officer also prepared site plan on pointation of the complainant---Though the site plan was prepared and the places of the deceased, eye-witness and the acquitted co-accused were mentioned therein, but no empties of 7.62 bore were recovered from the places of acquitted co-accused---Even the Investigating Officer did not take into possession the motorcycle belonging to the deceased---Circumstances established that the prosecution could not prove guilt of the accused---Appeal against the conviction was accordingly allowed.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Unnatural conduct of the witnesses---Accused was charged for committing murder of the brother of the complainant by firing in a clinic---In the present case, when both the statements, one recoded by the Investigating Officer and the other recorded by the eye-witness during trial, were placed in juxtaposition, there was no hesitation to hold that the eye-witness did not remain natural and consistent to his previously recorded statement and the improvements found in his Court statement were dishonest which had put a question mark on his integrity---Prosecution had to explain that when the deceased died on the spot, then what compelled them to go to the hospital to report the matter despite the fact the police station was lying at a closer distance and also one had to pass the police station to reach the hospital---Abnormal conduct displayed by the witnesses confirmed their absence at the time of incident, which left no other opinion but to deduce that at the time of incident the deceased was all alone who after receiving firearm injuries died on the spot and his dead body was shifted to the hospital by the people of the adjoining houses, where the matter was kept pending and it was on arrival of the complainant and the eye-witness, from their village that the matter was reported---Circumstances established that the prosecution could not prove guilt of the accused---Appeal against the conviction was accordingly allowed.

Liaquat Hussain and others v. Falak Sher and others 2003 SCMR 611 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence--- Medical evidence and ocular account---Contradiction---Accused was charged for committing murder of the brother of the complainant by firing in a clinic---Medical evidence was in conflict with the ocular account with respect to the seat of injury---Inter se comparison of what the complainant stated and what the doctor opined, was sufficient to hold that the medical evidence did not support the case of the prosecution---True, that medical evidence is confirmatory in nature and in case where the ocular account is trustworthy and confidence inspiring, it cannot be taken into account to discredit the eye-witness account--- In case the eye-witnesses fails to convince then in that eventuality it is the medical evidence that steers the wheel---In the present case, the conflict between the two suggested that the incident did not occur in the mode, manner alleged and it also raised an eyebrow over the conduct and presence of the complainant at the time of incident---Circumstances established that the prosecution could not prove guilt of the accused---Appeal against the conviction was accordingly allowed.

Akhtar Saleem and another v. The State and another 2019 MLD 1107 rel.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd---Appreciation of evidence---Defence plea---Plea of alibi---Accused was charged for committing murder of the brother of the complainant by firing in a clinic---Accused took the plea of alibi, stating therein that a day before the occurrence he was in custody of the police of another Police Station as his motor car was taken from his possession under S.550, Cr.P.C---Investigating Officer visited the concerned Police Station and recorded statements of all concerned including the Police Officials who arrested the accused and of an Advocate with whom the accused and two others stayed for a night---No doubt, the documents regarding interception of the motorcar were produced and placed on file and no doubt, the concerned witnesses stated of his confinement in the police lockup, but that alone was not sufficient to substantiate the claim of the accused rather the accused in order to prove his presence there, must have produced reliable witnesses and reliable documents---Documents so produced could not be taken into consideration in support of his plea of alibi---Court is to determine as to whether the plea taken and not proved would weigh against the accused---No ambiguity that if an accused takes a plea regarding his innocence and if he does not succeed to prove the same, it can not be taken against him, as the prosecution is still under the bounded duty to establish its charges and the burden never shifs--However, when an accused takes the plea of right of self-defence then in that situation the accused is under the obligation to prove the same failing which the Court, dealing with the matter, can take it into consideration against the accused charged, but in the present case the situation was otherwise as it was the prosecution which had to establish its case through cogent, convincing and trustworthy witnesses and the burden never shifted to the accused---Circumstances established that the prosecution could not prove guilt of the accused---Appeal against the conviction was accordingly allowed.

Ali Ahmad and another v. The State and others PLD 2020 SC 201 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive not proved---Accused was charged for committing murder of the brother of the complainant by firing in a clinic---Motive was stated to be the political rivalry between the parties, but the record was silent as to what status the deceased had, which prompted the accused to kill him and even the complainant failed to bring on record material evidence in that respect---Investigating Officer did not investigate the case on that particular line and even no independent witnesses were examined in that respect---Weakness or absence of a motive will not knock out the prosecution from contest, but it can not be ignored that once the motive is alleged and not proved, then it is the prosecution which has to suffer---Circumstances established that the prosecution could not prove guilt of the accused---Appeal against the conviction was accordingly allowed.

Ghulam Hur Khan Baloch, Muhammad Yousaf Khan and Muhammad Waheed Anjum for Appellant.

Kamran Hayat Miankhel, Addl. A.G. for the State

Saleemullah Khan Ranazai and Saifur Rehman Khan for Respondents.

2023 Y L R 2281

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

AMIR RAWAN and others---Petitioners

Versus

MANZARAY and others---Respondents

Civil Revision No. 1297-P of 2005 with C.M. No. 2193 of 2021, decided on 3rd February, 2022.

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Art. 129, illustration (e)--- Suit for declaration---Revenue record---Presumption---Concurrent findings of facts by two Courts below---Petitioners/ plaintiffs claimed to be co-owners in suit land---Trial Court and Lower Appellate Court dismissed suit and appeal filed by petitioners / plaintiffs--- Validity---Presumption of correctness was attached to entries in revenue record but strong presumption of correctness was attached to entries made in the course of first settlement---Petitioners/plaintiffs of suit were to stand on their own legs and their case could not succeed merely by exploiting weaknesses of opposite party i.e. respondents / defendants--- When petitioners/plaintiffs could not prove that property in dispute had been part of property assigned to their village nor they had ever remained in possession of specific part of property in dispute, then weaknesses in plea of respondents/ defendants was not sufficient to give a decree to petitioners/plaintiffs for setting aside entries made in revenue record in the course of first settlement---High Court declined to interfere in concurrent findings of facts by two Courts below who dismissed suit of petitioners/ plaintiffs and such findings were not result of misreading and non-reading of evidence nor had caused miscarriage of justice---Revision was dismissed, in circumstances.

Ali Ahmad and another v. Muhammad Fazal and another 1972 SCMR 322; Ghulam Farid and another v. Sher Rehman through legal heirs 2016 SCMR 862; Mst. Brikhna v. Faiz Ullah Khan and others 2020 SCMR 1618; Shafqat Ali Shah v. Nasreen Akhtar and 3 others PLD 2020 SC 148; Mst. Ghulam Sughran and others v. Sahibzada Ijaz Hussain and others PLD 1986 Lah. 194; Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another 2020 SCMR 171; Nawab Khan and others v. Said Karim Khan and others 1997 SCMR 1840; Haji Allah Bakhsh v. Abdullah Khan and 4 others 2001 SCMR 363; Mazloom Hussain v. Abid Hussain and 4 others PLD 2008 SC 571 and Sultan Muhammad and another v. Muhammad Qasim and others 2010 SCMR 1630 ref.

Sher Muhammad Khan for Petitioners.

Qazi Midrarullah for Respondents.

2023 Y L R 2323

[Peshawar (Mingora Bench)]

Before Ishtiaq Ibrahim and Wiqar Ahmad, JJ

MUHAMMAD ZAHIR SHAH and another---Petitioners

Versus

AMIN-UR-REHMAN and another---Respondents

Criminal Appeal No. 3-M of 2020, decided on 11th November, 2021.

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

----Ss. 302(b), 324, 311 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, common intention, possession of unlicensed arms---Appreciation of evidence---Benefit of doubt---Presence of eye-witnesses at the place and time of occurrence doubtful---Accused were charged for committing murder of the brother of the complainant by firing and also committed murder of wife of one of the accused on the pretext of honour---Record showed that the dead body remained at the spot for two hours till arrival of police but neither the eye-witnesses nor anybody else shifted the dead body to police station or hospital---How could it be expected from eye-witnesses that when their near and dear was done to death in their presence they remained silent spectators for two hours without making any effort either to inform male members of their house or to inform the local police or other relatives, though their house was at walking distance of only 30 minutes from the spot---In the present era of modern technology when the entire world had become a global village and imparting a message now a days was just a matter of seconds, how the dead body laid unattended on the spot for two hours in spite of the fact that so many people were attracted to the spot soon after the occurrence as per prosecution version---Admittedly the eye-witnesses had not even touched the dead body though the assailants had decamped from the spot and for the said reason their clothes did not smear with the blood of deceased---Said conduct of the eye-witnesses was also unusual because women folk by their nature usually become more emotional as compared to males on the occasions of death of a family member---At such events women usually embrace and hug the dead bodies of their nears and dears especially when the matter was that of unnatural death but the eye-witnesses in the present case had not displayed the same conduct---Unusual and unnatural conduct of the eye-witnesses created doubts about their presence at the place and time of occurrence---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

Mazhar Iqbal and another v. The State and others 2017 SCMR 2036 and Muhammad Ismail and others v. The State 2017 SCMR 898 rel.

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

----Ss. 302(b), 324, 311 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, common intention, possession of unlicensed arms---Appreciation of evidence---Benefit of doubt---Defective investigation--- Accused were charged for committing murder of the brother of the complainant by firing and also committed murder of wife of one of the accused on the pretext of honour---As per prosecution version, complainant was carrying the bag of deceased while the other eye-witness had a shopping bag of the deceased while on their way in the company of deceased---Strangely the Investigating Officer had neither taken the referred luggage of deceased into possession nor shown the same in the site plan to corroborate the version of complainant regarding departure of deceased to another place on the day of occurrence---Said omission on the part of Investigating Officer showed that the version of complainant as narrated in the FIR regarding departure of the deceased was only a concocted story---Even otherwise, carrying of loads was usually the job of males and it could not be expected from the deceased to let his sister and sister-in-law, being females to carry his bag and shopping bag---No evidence was available on record to show that the deceased was sick or otherwise incapable of carrying any load himself at the relevant time---Circumstances estab-lished that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

The State v. Muhammad Akram PLD 1985 Pesh. 116 rel.

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

----Ss. 302(b), 324, 311 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, common intention, possession of unlicensed arms--- Appreciation of evidence--- Benefit of doubt---Contradictions and improvements made by the witnesses---Accused were charged for committing murder of the brother of the complainant by firing and also committed murder of wife of one of the accused on the pretext of honour---Record showed that the statements of both the eye-witnesses were unreliable for the reason that not only they had contradicted each other on material particulars of the occurrence but they had also dishonestly improved their statements to bring the same in conformity with circumstantial evidence on record---Complainant stated in her cross-examination that on arrival of police, the dead body of deceased lady had not been brought to the spot of first occurrence while eye-witness stated that dead body of said deceased lady and police reached the spot at the same time---Said divergent versions of both the eye-witnesses regarding the same material fact did not tally with the version of SHO in FIR as according to him the dead body of the male deceased was lying on the spot while the people had shifted the dead body of lady deceased---Narrations of the eye-witnesses in court with regard to their order of walking on the thoroughfare at the time of incident, specification of firearms and specification of the roles of both the accused with regard to injuries sustained by deceased did not occur in the FIR---Defence had confronted both the eye-witnesses with their statements under S. 161, Cr.P.C., during their cross-examination which showed that the eye-witnesses had dishonestly improved their initial version to bring their statements in line with site plan and medical evidence---Dishonest improvements on the part of a witness casted a serious doubt on his veracity---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

Naveed Asghar and 02 others v. The State PLD 2021 SC 600 rel.

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

----Ss. 302(b), 324, 311 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, common intention, possession of unlicensed arms---Appreciation of evidence---Benefit of doubt---Delay of two hours in lodging FIR---Effect---Accused were charged for committing murder of the brother of the complainant by firing and also committed murder of wife of one of the accused on the pretext of honour---According to FIR, the occurrence took place at 09:00 am but the report was lodged at 11:00 am with delay of two hours---Even the said entries in the FIR appeared to be fictitious because witness, who had seconded the report of complainant, admitted in his cross-examination that he had reached the spot at 08:15 am and on his arrival police were already present on the spot---Thus, it appeared that the occurrence had taken place at least before 07:00 am and that fact could be confirmed from the contents of the FIR wherein the complainant stated that they had set off early in the morning---Term 'early in the morning' generally denoted the time before sunrise---Date of occurrence was 05.03.2019 and the time of sunrise in the area concerned as per calendar was 06:35 a.m.---Statement of witness clearly showed that on his arrival at the spot at 08:15 a.m. police were already present on the spot meaning thereby that real facts of the occurrence had been suppressed by prosecution---Mentioned circumstances on record suggested that police had deliberately delayed lodging of the report to procure the attendance of eye-witnesses---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b), 324, 311 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, common intention, possession of unlicensed arms---Appreciation of evidence---Benefit of doubt---First Information Report lodged after deliberation and consultation---Accused were charged for committing murder of the brother of the complainant by firing and also committed murder of wife of one of the accused on the pretext of honour---In the present case, if the eye-witnesses accompanied the deceased upto the spot, police would have recorded the report at least at 08:00 am but it appeared that they had deferred recording of the report till arrival of the females to the spot at 11:00 am---Thus, preliminary investigation was conducted in the matter and relatives of the deceased charged the present accused persons for the murder after deliberation and consultation as was evident from clear cut admission of witness that from 08:15 a.m. till 11:30 a.m. they consulted each other for charging the accused---Factum regarding preliminary investigation and procurement of the eye-witnesses was further confirmed from the fact that even post-mortems on the dead bodies were delayed till 04:00/04:30 pm on the same day otherwise there was no reason for such belated examination of the dead bodies by the doctor at Civil Hospital when the Police Station was also situated at a distance of only 7/8 kilometers from the spot, which could be covered within half an hour---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

Iftikhar Hussain and others v. The State 2004 SCMR 1185 rel.

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

----Ss. 302(b), 324, 311 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, common intention, possession of unlicensed arms---Appreciation of evidence---Benefit of doubt---Disparity between the ocular account and site plan---Accused were charged for committing murder of the brother of the complainant by firing and also committed murder of wife of one of the accused on the pretext of honour---Investigating Office had not shown any stream in the site plan and it appeared that the pathway on which the occurrence took place, was leading towards a stream---From careful perusal of the statements of witnesses, it could be concluded that a stream was intervening between the spot of occurrence and houses of the accused persons but the site plan was silent regarding existence of stream in-between the houses of accused persons and the first crime spot---In light of the statements of the eye-witnesses, the place of first occurrence became doubtful because the same had been shown adjacent to the house of accused persons in the site plan---Said situation suggested concealment of real facts of the occurrence on the part of prosecution for the purpose of showing nexus of the present accused persons with the murder of deceased---Disparity between the ocular account and site plan created a reasonable doubt in prudent mind, hence, the story narrated in the FIR could not be believed---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b), 324, 311 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, common intention, possession of unlicensed arms---Appreciation of evidence---Benefit of doubt--- Place of occurrence un-witnessed--- Scope---Accused were charged for committing murder of the brother of the complainant by firing and also committed murder of wife of one of the accused on the pretext of honour---Record showed that the second occurrence, wherein lady deceased was done to death, had remained un-witnessed because prosecution had not produced any eye-witness to establish involvement of accused with the said murder which was attributed to him---Though daughter-in-law of the female deceased, was examined but she was declared as hostile witness on the request of prosecution---During her cross-examination, said witness was only confronted with her statement under S. 164, Cr.P.C. and nothing material could be brought from her on record to establish that the assailant was the accused---Postmortem though showed that the female deceased had met an unnatural death due to firearm injuries, however, the said evidence alone was not sufficient to prove that the firearm injuries were caused to deceased by her husband/ 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 accordingly allowed.

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

----Ss. 302(b), 324, 311 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, common intention, possession of unlicensed arms---Appreciation of evidence---Benefit of doubt---Medical evidence and ocular account---Contradictions---Accused were charged for committing murder of the brother of the complainant by firing and also committed murder of wife of one of the accused on the pretext of honour---Complainant in her examination-in-chief had attributed two effective fire shots upon deceased to accused, while other accused was assigned only one fire shot thereby causing injury on the right side of chest of the deceased---According to medical report of deceased, the Medical Officer had observed three inlet wounds all of 1/2 inch in size---Version of prosecution was that accused was armed with 30-bore pistol while other accused had fired at the deceased with 9 MM pistol---Definitely, fire shots with two pistols of different bores would have caused entry wounds of different dimensions on the deceased but the situation in the present case was different---Medical Officer stated that similar characteristics of wounds suggested firing from one and the same weapon---Thus, the entry wounds of same size on the dead body of deceased suggested that it was a one man job but the charge was exaggerated by complainant by implicating two persons in the case---Furthermore, it could not be determined from the evidence on record that which one of the two accused had killed the deceased---Lady Medical Officer had reported two entry wounds both of 1.5 cm in size which did not tally with the size of inlet wounds on the dead body of lady deceased---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

Farman Ali and 03 others v. The State PLD 1980 SC 201 rel.

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

----Ss. 302(b), 324, 311 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, common intention, possession of unlicensed arms---Appreciation of evidence---Benefit of doubt--- Recovery of crime empties and blood from the spot---Reliance---Accused were charged for committing murder of the brother of the complainant by firing and also committed murder of wife of one of the accused on the pretext of honour---Investigating Officer had visited the spot on the day of occurrence, along with Police Constables and allegedly recovered crime empties and blood from the two spots---Prosecution had examined marginal witness of different recovery memos---According to recovery memo, the Investigating Officer had recovered 05 empties of 30-bore pistol from the first spot, which were attributed to accused while a single empty of 9 MM bore pistol was recovered from the spot allegedly fired by other accused---As per other recovery memo, one empty and one live round of 9 MM bore pistol were recovered from the second spot and the same had been attributed to accused/ husband of lady deceased---Similarly, Constable, who was one of the attesting witnesses of recovery memos, recovered blood-stained earth from the first spot and blood-stained earth/grass and sickle from the second spot---Record showed that it was not the stance of prosecution that Investigating Officer had recovered the blood and crime empties from the spots during different visits at different times on the same date rather the Investigating Officer had admitted it in clear terms that besides him ASI, Constable and other private persons were present---Thus, in light of the evidence on record, the said marginal witnesses ASI and Constable were present on the spots at the time of recovery of blood-stained earth/grass and crime empties but Constable had denied recovery of empties from any spot---It was evident from the statement of Constable that no empty was recovered by Investigating Officer from both the spots in his presence though he was present there at the relevant times along with Investigating Officer and ASI, the witness of recovery of empties---Said state of affairs suggested that actually no empties were recovered by police from both the spots otherwise Constable would have verified the said factum during his cross-examination---Status of recovery of crime weapons on pointation of both the accused was similarly doubtful---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b), 324, 311 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd, common intention, possession of unlicensed arms---Appreciation of evidence---Benefit of doubt---Recovery of weapons of offence---Reliance---Accused were charged for committing murder of the brother of the complainant by firing and also committed murder of wife of one of the accused on the pretext of honour---Admittedly, the Investigating Officer had raided the houses of accused persons for the purpose of their arrest and recovery of crime weapons but no weapon was recovered from their houses on the same date---Recovery of 30-bore pistol had been shown from fodder-husk spread over the goat-yard inside the house of accused whereas 9 MM pistol was allegedly recovered on pointation of husband of lady deceased from the top of cupboard in veranda of his house---Prosecution had not explained that why the pistols were not recovered from the mentioned places inside the houses of accused persons during the first raid of police on their houses on the day of occurrence---Matching Forensic Science Laboratory Reports were of no avail to prosecution in view of the doubtful recoveries of crime empties and crime weapons---Parcels containing empties were handed over to constable on 10.03.2019 but he delivered the same in the forensic laboratory on 13.03.2019---Said Constable had not explained that for what purpose he had retained the empties with him for several days, hence, manipulation of the crime empties could not be ruled out in the circumstances---Corroborative recoveries of such doubtful nature could not be relied upon against the accused persons---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal against conviction was accordingly allowed.

Hafiz Ashfaq Ahmad for Appellant/convict.

Razauddin Khan, A.A.G. for the State.

Rahim Zada, Advocate for the Complainant.

2023 Y L R 2374

[Peshawar (Bannu Bench)]

Before Sahibzada Asadullah and Muhammad Naeem Anwar, JJ

FARZAND ALI and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 33-B of 2019, decided on 8th February, 2022.

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

----Ss. 302(b), 324, 337-F(i), 337-F(ii), 337-F(vi), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, causing badi'ah, munaqqillah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Presence of the witnesses at the spot doubtful---Accused were charged for launching murderous assault on the complainant party by firing at them with their respective weapons, as a result of which complainant and six other persons sustained fire arm injuries, while two succumbed to their injuries on the spot---Record showed that on one hand, the information was received at 6:10 pm, whereas on the other the Medical Officer examined the injured at 6:03 pm, when the matter by then had not been reported---True that in case of injured witnesses the prime duty was to save their lives on priority instead of waiting for arrival of the concerned Police Official to report, but as in the instant case it was the scribe who stated that first the matter was reported in the shape of murasila, thereafter, he prepared the injury sheets and inquest reports followed by shifting the injured to the Medical Officer for their medical examination---If one went with what the scribe submitted, then all the three i.e. the complainant, scribe and the Medical Officer did not support one another on the aspect of occurrence of the case---Medical Officer who conducted autopsy on the dead body of the deceased confirmed that one of the deceased was examined at 8:30 pm, whereas the other at 9:30 pm---Postmortem report depicted the time between injury and death as 20 minutes to 01 hour in case of one of the deceased---Said opinion of the Medical Officer further falsified the statement of the complainant---If it was admitted that the incident occurred at 5:30 pm and the report was made at 6:30 pm, then in that eventuality, the time between injury and death in case of one of the deceased did not lend support to the prosecution version---Prosecution failed to answer that when the deceased survived for long one hour, what precluded them to shift the deceased then injured to the hospital to save his life---Said fact could be interpreted in two different ways, either the complainant after receiving firearm injuries was shifted to the hospital after a considerable delay or the deceased, after receiving firearm injuries left the spot in injured condition---Circumstances did tell that the matter was reported after consultation and deliberation---Witnesses were not in unison on that particular aspect of the case---Circumstances established that the prosecution failed to bring home guilt against the accused persons---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324, 337-F(i), 337-F(ii), 337-F(vi), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, causing badi'ah, munaqqillah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Contradictions in statements of witnesses and report of complainant---Accused were charged for launching murderous assault on the complainant party by firing at them with their respective weapons, as a result of which complainant and six other persons sustained fire arm injuries, while two succumbed to their injuries on the spot---Investigating Officer, after receiving copy of F.I.R, reached to the spot at 8:30 pm and on pointation of one Mr. "I", the site plan was prepared---Prosecution had to tell that when Mr. "I" was present in the hospital, as it was he who identified the dead body before the police at the time of report and before the doctor at the time of postmortem examination, it was he who received the dead bodies after postmortem examination---Record showed that the postmortem examination was completed at 9:30 pm and that right from beginning till end, Mr. "I" was shown present in the hospital---Surprisingly, in such circumstances how could Mr. "I" be present on the spot at the same time---Investigating Officer stated that on reaching the spot many people were present, out of them one came forward, whose hands and clothes were besmeared with blood and introduced himself as Mr. "I" and claimed to have seen the incident---On one hand, the explanation rendered by the Investigating Officer did not appeal to a prudent mind and on the other, the name of that witness was neither mentioned in the calendar of witnesses nor his statement was recorded---Statements of the witnesses in respect of arrival of the dead-bodies along with injured witnesses to the hospital and their subsequent examination by the doctor when read in juxtaposition with report made by the complainant, the same contradicted each other and in turn damaged the prosecution case beyond repair, more particularly, affected veracity of the witnesses---Circumstances established that the prosecution failed to bring home guilt against the accused persons---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324, 337-F(i), 337-F(ii), 337-F(vi), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, causing badi'ah, munaqqillah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Medical evidence contradicting prosecution case---Accused were charged for launching murderous assault on the complainant party by firing at them with their respective weapons, as a result of which complainant and six other persons sustained fire arm injuries, while two succumbed to their injuries on the spot---Postmortem reports and Medico-Legal Certificates, showed that each of the deceased received a single firearm injury and such was also the case with the injured---If all the accused duly armed had fired with the only intention to kill, the situation would have been different with multiple injuries to all the victims---Fact could not be ignored that all injuries on injured witnesses landed on non-vital parts of their bodies---Had the intention been to kill, then the accused would have easily eliminated their targets, but the circumstances suggested that it was the doing of a single person---Circumstances established that the prosecution failed to bring home guilt against the accused persons---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324, 337-F(i), 337-F(ii), 337-F(vi), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, causing badi'ah, munaqqillah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Case of cross-firing---Suppression of facts by complainant--- Accused were charged for launching murderous assault on the complainant party by firing at them with their respective weapons, as a result of which complainant and six other persons sustained fire arm injuries, while two succumbed to their injuries on the spot---Record showed that Mr. "I" posed himself to have seen the incident, but the complainant did not mention his presence on the spot at the time of incident---Witnesses disclosed that after firing on them, all the accused went inside the house of Mr. "F"---Inside the house, accused persons fired, and as a result of their firing one of the accused got injured---Complainant never ever stated the source of his information in respect of the injury caused to injured accused---Said disclosure on part of the complainant twisted the prosecution story and there were no hesitation in holding that in fact there was cross firing between the parties which resulted into injuries from both sides---When the complainant admitted injury on person of the accused and when nothing was brought on record to convince that the same was self-inflicted, it could form and only one opinion that the real facts were suppressed---Circumstances established that the prosecution failed to bring home guilt against the accused persons---Appeal against conviction was allowed, in circumstances.

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

----S. 342---Examination of accused---Scope---Every incriminating piece of evidence must be put to the accused charged, failing which the same will lose its evidentiary value.

(f) Criminal trial---

----Benefit of doubt---Principle---Benefit of doubt when arising must be credited to the accused charged.

Mukhtasir and 5 others v. The State and others 2017 PCr.LJ 1607 and Munir Ahmed and others v. The State and others 2019 SCMR 2006 rel.

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

----Ss. 302(b), 324, 337-F(i), 337-F(ii), 337-F(vi), 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, causing badi'ah, munaqqillah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Withholding best witnesses---Effect---Accused were charged for launching murderous assault on the complainant party by firing at them with their respective weapons, as a result of which complainant and six other persons sustained fire arm injuries, while two succumbed to their injuries on the spot---Record showed that out of five injured witnesses, three were not produced and another important witness Mr. "I", on whose pointation the site plan was prepared, was neither mentioned in the calendar of witnesses, nor produced before the Court despite the fact he claimed to have witnessed the incident---Conduct displayed by the prosecution by not producing the most important witnesses had damaged the prosecution case and an inference could easily be drawn that the abandoned eye-witnesses were not ready to support false claim of the complainant---In such circumstances, Art. 129(g) of the Qanun-e-Shahadat, 1984, could be pressed into service---Circumstances established that the prosecution failed to bring home guilt against the accused persons---Appeal against conviction was allowed, in circumstances.

Tahir Khan v. The State 2011 SCMR 646 rel.

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

----Ss. 302(b), 324, 337-F(i), 337-F(ii), 337-F(vi), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, causing badi'ah, munaqqillah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of weapon of offence on the pointation of accused doubtful---Accused were charged for launching murderous assault on the complainant party by firing at them with their respective weapons, as a result of which complainant and six other persons sustained fire arm injuries, while two succumbed to their injuries on the spot---Record showed that after the arrest of accused, a Kalashnikov was allegedly recovered from his house on his pointation, but neither the Investigating Officer nor all concerned could collect any evidence on record to substantiate that the house in question was in the sole ownership of the said accused or that the room wherefrom the weapon of offence was recovered was in exclusive possession of the said accused---Even the record was silent regarding the safe custody of the weapon and its safe transmission to the Firearms Expert for analysis---Another intriguing aspect of the case was that on the day of incident, the house of the said accused was searched but nothing incriminating was recovered---More so, it was for the Seizing Officer to tell that once they failed to recover the weapon despite thorough search, that too, on the day of incident, how they succeeded in recovering the same the following day---Recovery of the weapon on pointation of the accused was shrouded in mystery and the prosecution could not succeed in resolving the same---In such eventuality, such piece of evidence had lost its efficacy and could not be taken into consideration, that too, to convict the accused---Circumstances established that the prosecution failed to bring home guilt against the accused persons---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324, 337-F(i), 337-F(ii), 337-F(vi), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, causing badi'ah, munaqqillah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Motive not proved---Accused were charged for launching murderous assault on the complainant party by firing at them with their respective weapons, as a result of which complainant and six other persons sustained fire arm injuries, while two succumbed to their injuries on the spot---Motive was stated to be a property dispute between the parties and in that respect the acquitted co-accused had registered a FIR under S. 324, P.P.C., against the complainant of the present case---Complainant was cross-examined on such particular aspect of the case, who disclosed that the motive was between him and the acquitted co-accused---When the accused persons had nothing to do with the motive, then question was as to what motivated them with the acquitted co-accused to kill the deceased---Investigating Officer did not record statements of independent witnesses in support of motive alleged by the complainant---True that absence or weakness of motive alone was not a sufficient cause to disbelieve, but keeping in view the peculiar circumstances of the present case, that too, when the sole purpose was landed property dispute, the prosecution was under obligation to prove the same, failing which none else but the prosecution would suffer---Circumstances established that the prosecution failed to bring home guilt against the accused persons---Appeal against conviction was allowed, in circumstances.

Nadeem Ramzan v. The State 2018 SCMR 149 rel.

Anwar-ul-Haq for Appellants.

Saif-ur-Rehman Khattak, Addl. A.G. for the State.

Farooq Khan Sokari for the Complainant.

2023 Y L R 2401

[Peshawar]

Before Rooh-ul-Amin Khan and Ishtiaq Ibrahim, JJ

RAZIQ JAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 174-P with Murder Reference No. 3 of 2021, decided on 27th April, 2022.

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

----Ss. 302(b), 364-A, 201 & 34---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-i-amd, kidnapping or abducting a person under the age of fourteen, causing disappearance of evidence of offence, or giving false information to screen offender, common intention---Appreciation of evidence---Recovery of dead body on disclosure of accused---Reliance---Accused were charged for committing murder of the minor nephew of the complainant after kidnapping him---In the present case, the pointation of the grave and subsequently the recovery of the dead body of the deceased with particular reference to the accused had been duly proved by the prosecution by considering the attending circumstances of the case---Recovery of the dead body vide exhumation memo from the graveyard of a village by itself was sufficient for basing conviction---Prosecution in order to prove the pointation memo examined two witnesses i.e. ASI and Inspector---Defence had not cross-examined the said witnesses with particular reference to the pointation memo and the same had remained un-rebutted and unchallenged---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was accordingly dismissed.

Abdul Samad's case PLD 1964 SC 167 and Nazir Shehzad and other's case 2009 SCMR 1440 rel.

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

----Ss. 302(b), 364-A, 201 & 34---Criminal Procedure Code (V of 1898), S. 103---Qatl-i-amd, kidnapping or abducting a person under the age of fourteen, causing disappearance of evidence of offence, or giving false information to screen offender, common intention---Appreciation of evidence---Non-association of private witnesses in recovery proceedings---Inconsequential---Accused were charged for committing murder of the minor nephew of the complainant after kidnapping him---Defence had challenged the evidentiary value of the recoveries and discoveries mainly on the ground that police had not associated any independent witness with the said process and posed Police Officials to the recovery memos in violation of S.103, Cr.P.C.---Validity---Attesting witnesses of the recovery memos in the present case were mostly Police Officials, however, police were as good as other private witnesses, therefore, their testimony could not be discarded on the ground of their status as employees of police department when otherwise they had supported the recoveries through truthful statements and no evidence was present to suggest their ill-will towards the accused persons---Moreover, compliance of S. 103, Cr.P.C. was necessary when search of a house or place was conducted by police for recovery of something and not in the cases when the recovery was made on pointation of accused---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was accordingly dismissed.

Muhammad Akbar v. The State 1995 SCMR 693 rel.

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

----S. 164---Accused handed over to the police after recording his confessional statement---Legality---Mere fact that the accused was handed over to the police after recording of confession in all circumstances shall not be a ground for discarding the confessional statement, if otherwise, it rang true and was voluntary.

Muhammad Sharif v. The State 1969 SCMR 521 rel.

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

----Ss. 302(b), 364-A, 201 & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, kidnapping or abducting a person under the age of fourteen, causing disappearance of evidence of offence, or giving false information to screen offender, common intention---Appreciation of evidence---Confessional statement of the accused---Accused were charged for committing murder of the minor nephew of the complainant after kidnapping him---In the present case, the confession of the accused was supported by medical evidence that the deceased was strangulated---Medical Officer also opined that the deceased died due to asphyxia due to ligature strangulation---Furthermore, accused put the dead body of deceased in a sack and admittedly it was recovered after recoding the confessional statement of the accused---Fact that body was packed in a sack had also been verified by the Medical Officer---Recovery of dead body of the deceased was supported by the confessional statement of co-accused, which was sufficient for adjudging the accused guilty---Furthermore, the Investigating Officer had also taken into possession motorcycle on which accused took the dead body of deceased after strangulation for burial and both the accused persons in their confessional statements had admitted such fact---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was accordingly dismissed.

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

----S. 164---Confessional statement---Scope---Confession alone is sufficient for basing conviction, if the same is found to be voluntary and true.

Khan Muhammad and others v. The State 1999 SCMR 1818 rel.

(f) Criminal trial---

----Circumstantial evidence---Scope---Conviction could be based on circumstantial evidence.

Sheraz Tufail v. The State 2007 SCMR 518 rel.

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

----Ss. 302(b), 364-A, 201 & 34---Qatl-i-amd, kidnapping or abducting a person under the age of fourteen, causing disappearance of evidence of offence, or giving false information to screen offender, common intention---Appreciation of evidence---Offences under Ss. 364-A & 201, P.P.C. set aside---Accused were charged for committing murder of the minor nephew of the complainant after kidnapping him---It was admitted on record that both the parties were neighbors and were residing in one and the same neighbourhood---As per prosecution, the murder of minor had taken place inside the Bhaittak of the house of accused, which was situated in same proximity, therefore, question of abduction would not arise in the circumstances of the case---Accused was also convicted and sentenced under S. 201, P.P.C, as he was also charged for the murder of the deceased and had been adjudged guilty by the Court, therefore, his conviction under S. 201, P.P.C. was not sustainable---Thus, the charges under Ss. 364-A & 201, P.P.C. against accused were set aside and he was acquitted under Ss. 364-A & 201, P.P.C.---However, the prosecution had proved its case against the accused under S. 302(b), P.P.C. beyond any shadow of doubt---Appeal against conviction under S. 302(b), P.P.C. was accordingly dismissed.

Shams Saeed Ahmad Khan v. Shafaullah and another 1985 SCMR 1822 and Muhammad Akhtar v. Muhammad Shafique and another 1986 SCMR 533 rel.

Shabbir Hussain Qureshi Gigyani for Appellant.

Muhammad Nisar Khan, A.A.G. for the State.

Khizar Hayat Khazana for the Complainant.

2023 Y L R 2422

[Peshawar (D.I. Khan Bench)]

Before Muhammad Faheem Wali, J

GHULAM RABBANI and others---Petitioners

Versus

ABDUL AZIZ and others---Respondents

Civil Revision No. 97-D of 2014, decided on 5th April, 2022.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---West Pakistan Land Revenue Act (XVII of 1967), S. 45---Suit for declaration and injunction---Limitation---Entries in revenue record---Concurrent findings of facts by two Courts below---Respondents/plaintiffs assailed entries in revenue record and claimed ownership over suit land---Petitioners/defendants were aggrieved of judgments and decrees passed by two Courts below in favour of respondents/ plaintiffs---Validity---Each subsequent wrong mutation, as well as every entry in subsequent Jamabandi had given fresh cause of action to respondents/plaintiffs to file suit---Time to file such suit would run from each Jamabandi---Latest Jamabandi was for year 1998 while suit was filed on 08-05-2003---Limitation provided for suit for declaration was six years and suit filed by respondents/ plaintiffs was well within time---Concurrent findings of facts arrived at by the Courts below could not be disturbed by revisional Courts, when it was established that such findings were on the whole reasonable and were not arrived at by disregarding any provision of law or any accepted principle concerning appreciation of evidence---High Court declined to interfere in concurrent findings of facts arrived at by the two courts below---Revision was dismissed, in circumstances.

Abdul Sattar Khan and another v. Rafiq Khan and another 2000 SCMR 1574; Khan Muhammad through L.Rs and others v. Mst. Khatoon Bibi and others 2017 SCMR 1476; Alamgir Khan through L.Rs and others v. Haji Abdul Sittar Khan and others 2009 SCMR 54 and Moulvi Muhammad Azeem v. Alhaj Mehmood Khan Bangish and another 2010 SCMR 817 rel.

Rustam Khan Kundi and Ghulam Hur Khan Baloch for Petitioners.

Syed Mastan Ali Zaidi and Rehmatulah, Asstt: A.G. for Respondents.

2023 Y L R 2462

[Peshawar]

Before Muhammad Ibrahim Khan and Ishtiaq Ibrahim, JJ

MUNEEB HASSAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 846-P of 2018, decided on 5th July, 2022.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused was charged that he along with his co-accused committed murder of the maternal uncle of complainant by firing---Motive behind the occurrence was stated to be previous blood feud enmity between the parties---Record showed that it was the case of prosecution that on the eventful day at 04:05 p.m. complainant party was present in front of the Hujra of the deceased and were busy in gossiping, in the meantime, accused along with the acquitted co-accused and the absconding co-accused came there duly armed with firearms and started indiscriminate firing at the deceased, as result whereof the deceased got hit and sustained injuries---Site plan of the Hujra of the deceased showed that the same comprised of rooms, veranda and courtyard as well---Thus, there was no occasion for the deceased and the witnesses to be present in the thoroughfare for the purpose of chatting when the gate of the Hujra was quite close to the point where the deceased had been shown to be present at the time of occurrence---Even otherwise when deceased and witnesses were locked in intense enmity their presence in the thoroughfare did not appeal to a prudent mind---In the site plan the deceased had been shown on one side of the road while the complainant and witnesses had been shown at the other side---If they were present for the purpose of gossiping then they should have been close to each other instead of standing at a considerable distance from each other---Another feature of the case was ages of the witnesses and the deceased---Deceased was aged about 75/76 years and the complainant was aged about 47/48 years while eye-witness was aged about 38 years---Deceased and witnesses were from different age groups and their assemblage at that point of time for the purpose of gossiping was also repellent to common sense keeping in view the difference between their ages---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---Presence of the witnesses at the spot doubtful---Accused was charged that he along with his co-accused committed murder of the maternal uncle of complainant by firing---Record showed that the house of the complainant was situated at a distance of 300/400 meters from the Masjid as well as from the Hujra of the deceased where they offered Asar prayer before the occurrence---Likewise, the mosque was also available close to the house of another eye-witness and he had stated that he normally performed his prayer in the Mosque "A" which was near to their house and he used to perform his prayers in routine over there---Prosecution had tried to show the presence of said witnesses at the relevant time but the same had not been proved for the reason that both the witnesses were residing far away at a considerable distance from the Hujra of the deceased---Complainant had further stated that they were present in Hujra from noon time till Asar time while on the contrary other eye-witness had stated that he was present in the Hujra of the deceased since morning---No one from the Mosque even the Pesh Imam had been examined to prove the presence of the witnesses along with the deceased at the time of Asar prayers---Story of the prosecution on which the entire superstructure of the prosecution case was erected appeared to be false and did not stand to reason---Allegedly the report was made within 45 minutes of the occurrence but it was in the statement of eye-witness that it consumed three hours from the occurrence till lodging of the FIR---Thus, the time of the report as alleged by the prosecution seemed to be incorrect and that's why inspite of the fact the deceased was dead, he was not taken to the police station and was shifted to Civil Hospital, therefore, there was no hesitation in holding that the prosecution had failed to prove the presence of the witnesses at the spot---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 Irshad and another v. The State 1999 SCMR 1030; Muhammad Khan and others v. The State 1999 SCMR 1220 and Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of crime empties from the spot---Accused was charged that he along with his co-accused committed murder of the maternal uncle of complainant by firing---In the present case three persons were charged for effective firing at the deceased with firearms---During the spot inspection 18 empties of Kalashnikov were secured from a point shown in the site plan which had been shown in front of the accused---Investigation Officer had admitted that Kalashnikov ejected its empties towards its right side---If three persons were charged for firing without specifying the role of each accused and when the empties were not sent to the expert by the Investigating Officer, then it could be safely assumed that it was doing of one man---By looking at the dimension of the injuries i.e. all the entry wounds were of ¼ x ¼ inches in size---Not sending alleged crime empties to the Forensic Science Laboratory made the same doubtful and such recovery could not be relied upon for purpose of conviction---Moreso, said piece of evidence was a corroborative one and in a case where direct evidence failed, corroborative piece of evidence was of no avail, same as in the instant case where direct evidence of witnesses had already been disbelieved---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.

Farman Ali and 3 others v. The State PLD 1980 SC 201 and Ghulam Akbar and another v. The State 2008 SCMR 1064 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---Benefit of even a slight doubt is to be extended in favour of the accused.

Fazal Muhammad v. Zia ul Haq and another 2016 PCr.LJ Note 30 rel.

Syed Abdul Fayaz for Appellant.

Muhammad Nisar Khan, A.A.G., for the State.

Mian Sher Akbar for the Complainant.

2023 Y L R 2487

[Peshawar (Abbottabad Bench)]

Before Wiqar Ahmad and Fazal Subhan, JJ

BAKHT BILAND---Appellant

Versus

SARBILAND and 2 others---Respondents

Criminal Appeal No. 422-A of 2019, decided on 25th January, 2023.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence--- Accused were charged that they made firing upon the complainant party, due to which the complainant and two other persons died---In this case, complainant lodged the report promptly, in injured condition and the murasla showed his thumb impression but no one had verified his report or thumb impression thereon, confirming that complainant had lodged the report, in injured condition, at his residence---Record further revealed that after the alleged occurrence, the complainant then injured was not shifted to the hospital and admittedly SHO on getting information through telephone himself visited the spot of occurrence---Statement of SHO revealed that he prepared injury sheets and inquest reports---Inquest report revealed that there was cutting and overwriting in column No. 3, in respect of date and time, wherein, date and time of death was changed from 14.06.2018 to 15.06.2018 and from 06.30 am to 12.30 a.m.---Inquest report of deceased when seen in the light of the cross-examination of father of complainant, there was clear admission that he conveyed the information of occurrence to SHO---Thus, the preparation of inquest report of complainant, the visible tampering in the date and time of preparation of his inquest report and admission of his father clearly showed that complainant had already succumbed to his injuries and that is why, the deceased were not shifted to the hospital for treatment nor taken to the police station for lodging the report---At the time of arrival of SHO, all the three deceased were dead and no injury sheet of complainant was prepared and there was no description of the alleged injuries sustained by complainant to confirm that the injury on his person was on thigh and that he could talk and had lodged the report---Said fact clearly raised serious doubts about the factum of lodging of report by the deceased, the then alleged injured, and there existed strong circumstance that SHO, in connivance and collusion with the complainant party, had lodged a false and fabricated report to twist the actual facts and to make the case one based on dying declaration, however, facts on record strongly negated the story advanced by prosecution---Circumstances established that the prosecution had been unable to prove the guilt of accused beyond reasonable doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Medical evidence---Doubtful--- Accused were charged that they made firing upon the complainant party, due to which the complainant and two other persons died---Medical evidence available on record was manipulated and distorted one---Medical Officer stated to have examined the alleged injured/ complainant vide medical slip and his cross-examination was brimming with admissions that there was no mention of the locale of injury in his report nor he had given time and duration of examination of injured---Said witness also admitted that his report was silent about the oozing of blood from the wound, the identification mark of the injured and the Police Official who brought the injured to the hospital---Said facts clearly indicated that the medical evidence was managed and manipulated to lend support to the prosecution case---Circumstances established that the prosecution had been unable to prove the guilt of accused beyond reasonable doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Non-examination of dead bodies---Accused were charged that they made firing upon the complainant party, due to which the complainant and two other persons died---Record showed that the complainant party, in order to screen off the actual facts from surfacing applied to the police vide applications for exemption from post-mortem examination of the deceased---In the absence of post-mortem report, the nature, locale, the dimensions of injuries and the duration/time spent between death and post-mortem and other relevant facts relating to the alleged injuries on the bodies of the deceased could not be established---Thus, non-conducting of post-mortem of the deceased casted serious clouds on the veracity and authenticity of the story advanced by the prosecution---Circumstances established that the prosecution had been unable to prove the guilt of accused beyond reasonable doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Place of occurrence and presence of witnesses doubtful---Accused were charged that they made firing upon the complainant party, due to which the complainant and two other persons died---Spot of occurrence as described in the murasila/FIR was shrouded in mystery---In the murasila/FIR, the spot of occurrence was mentioned to be the house of complainant and after the occurrence Investigating Officer prepared the site plan at the instance and pointation of witnesses---However, except one room of husband of deceased lady/ uncle of complainant, no other residential rooms of the complainant or any other member of his family were shown therein---Father of the deceased complainant deposed that his house was at a distance of three minutes walk from the house of uncle of complainant---Said witness had denied that the occurrence had taken place in the house of uncle of deceased complainant---From the statements of witnesses, it was evident that the witnesses had not stated the truth and the spot of occurrence was not proved to be the house of complainant and had been falsely shown to be their house, whereas, the house of complainant was admittedly at distance of three minutes walk from the spot---When the spot of occurrence was not the house of complainant party, then, their presence on the spot at the relevant time especially in the month of Ramadan, seemed doubtful--- Circumstances established that the prosecution had been unable to prove the guilt of accused beyond reasonable doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Ocular account not proved---Accused were charged that they made firing upon the complainant party, due to which the complainant and two other persons died---Record showed that the father and uncle of the complainant had been examined as eye-witnesses of the occurrence---From the statements of said witnesses, it was clear that both the alleged eye-witnesses were not consistent in respect of their residences and they were found contradictory to one another---Noticeable that the alleged eye-witnesses were continuously changing their stance and their statements suffered from willful improvements in a bid to prove that the occurrence had taken place in their presence---Said witnesses tried to negate the site plan, prepared at their own instance and pointation---Cross-examination of the said witnesses showed that all the brothers had separate houses and the house of father of the deceased was at sufficient distance i.e. covered on foot in three minutes---Hence, the presence of the said alleged eye-witnesses at the spot of occurrence was not natural especially, when the occurrence took place in the month of Ramadan and at a time when people were normally present in their own houses to break their fast---No independent corroboration was available to support the stance of the two related and interested witnesses---At the same time, the statements of the said alleged eye-witnesses were neither found convincing nor confidence inspiring---Circumstances established that the prosecution had been unable to prove the guilt of accused beyond reasonable doubt---Appeal against conviction was accordingly allowed.

(f) Criminal trial---

----Improvements in previous statement---Scope---When statements of eye-witnesses suffer from willful improvements then reliance on such tainted evidence can not be made for awarding conviction.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused were charged that they made firing upon the complainant party, due to which the complainant and two others died---Prosecution had advanced the motive for the occurrence to be a quarrel between the children---However, Investigating Officer in his cross-examination had presented a motive all together different to the one presented by the complainant side---Said witness deposed that the daughter of uncle of complainant was married to co-accused and as a custom, he allowed his wife to visit her parent's house for ten days, whereas, she wanted to stay there for two months, which triggered a quarrel resulting into the incident---Thus, the motive advanced by the complainant/ deceased was controverted and dislodged during investigation conducted by the Investigating Officer---Thus, the accused, as per record, had no motive to cause the death of deceased---Circumstances established that the prosecution had been unable to prove the guilt of accused beyond reasonable doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Non-recovery of crime empties from the spot---Accused were charged that they made firing upon the complainant party, due to which the complainant and two others died---Prosecution case was that at the relevant time of occurrence all the five accused, duly armed with Kalashnikovs, entered the house and started firing upon the complainant party---However, surprisingly, not a single empty was recovered from the crime house nor any bullet marks had been shown on the surrounding walls---Said fact cast shadow of doubt about the site of occurrence, hence, the story advanced by the prosecution was neither believable nor proved beyond reasonable doubt---Circumstances established that the prosecution had been unable to prove the guilt of accused beyond reasonable doubt---Appeal against conviction was accordingly allowed.

Naseeb-ur-Rehman v. Muqarab Khan and another 2013 MLD 836 and Tajamal Hussain Shah v. The State 2022 SCMR 1567 rel.

Qazi Muhammad Arshad and Ghulam Mustafa Swati for Appellant.

Khurshid Alam Khan Tanoli, State counsel.

Shad Muhammad Khan for the Complainant.

2023 Y L R 2522

[Peshawar]

Before Syed Arshad Ali and Fazal Subhan, JJ

GOVERNMENT OF KHYBER PAKHTUNKHWA through Deputy Commissioner, Swabi and others---Petitioners

Versus

SAID AMIN and others---Respondents

Writ Petition No. 779-P of 2022 with IR, decided on 27th July, 2022.

Khyber Pakhtunkhwa Public Property (Removal of Encroach-ment) Act (V of 1977)---

----Ss. 3 & 13---Public property, dispute over---Title or ownership, question of---Entries in the record, challenging of---Jurisdiction of the Tribunal constituted under Khyber Pakhtunkhwa Public Property(Removal of Encroachment) Act, 1977 ('the Tribunal')---Scope---Plaintiffs were served with eviction notices by the defendants (District Government Departments)--- Plaintiffs / respondents, claiming themselves to be owners-in-possession of suit-property, filed before the Tribunal a suit for declaration, possession and permanent injunction, and challenged the eviction notices as well as a mutation having been attested in favour of the defendants(' mutation-in-question')--Suit was decreed as prayed for in plaintiffs' favour which was assailed by the petitioners/defendants before the High Court---Held, that plaint of the present suit revealed that the Tribunal was approached when one of the petitioners served notices under S. 3 of the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977 ('the Act 1977')---Impugned judgment showed that while granting decree in favour of the respondents not only the eviction notices were cancelled but at the same time mutation-in-question having been attested, more than thirty years ago, in favour of petitioner/Education Department had also been cancelled---Cancellation of the mutation-in-question was beyond the competence and jurisdiction entrusted to the Tribunal under S. 13 of the Khyber Pakhtunkhwa Public Property ( Removal of Encroachment) Act, 1977---Section 13 of the Act, 1977 stipulated that the Tribunal could only determine the question as to whether a property was a public property or otherwise, whereas the Tribunal could not enter and decide the question of title/ownership which was the exclusive jurisdiction of the Civil Courts---Respondents were to challenge the mutation-in-question before the Civil Court of competent jurisdiction---High Court set-aside the impugned judgment and decree passed by the Tribunal---Constitutional petition was allowed, in circumstances.

Malik Akhtar Hussain Awan, Additional Advocate General for Petitioner.

Muhammad Hamayun Khan for Respondents.

2023 Y L R 2534

[Peshawar (Mingora Bench)]

Before Dr. Khurshid Iqbal, J

TOTI RAHMAN and 6 others---Petitioners

Versus

The STATE and 8 others---Respondents

Writ Petition No. 826-M of 2022 (with Interim Relief), decided on 6th February, 2023.

Criminal Procedure Code (V of 1898)---

----Ss. 133, 137, 139-A & 561-A---Constitution of Pakistan, Art. 199---Thorough fare---Removal of obstruction---Non-recording of evidence---Petitioners were aggrieved of the order passed by Trial Court directing them to remove obstruction from the path in dispute---Validity---Petitioners were bound under S. 139-A, Cr.P.C. to deny existence of disputed path at the earliest---If petitioners had denied so the procedure laid down in S. 137, Cr.P.C. would have been adopted by recording evidence in the manner as provided in Chap. XX, Cr.P.C.---Petitioners failed to discharge their burden, therefore, Trial Court rightly made conditional order as absolute vide order in question---High Court in exercise of Constitutional jurisdiction under Art. 199 of the Constitution as well as inherent jurisdiction under S. 561-A, Cr.P.C. declined to interfere in the order directing petitioners to remove obstruction on the path in question---Constitutional petition was dismissed, in circumstances.

Ghulam Mustafa v. Muhammad Ismail and 2 others 1992 MLD 67; Faiz Muhammad v. Civil Judge and Judicial Magistrate and 2 others 2007 YLR 256; Haq Nawaz and 2 others v. Ramzan and 6 others PLD 1975 Pesh. 199 and Fayyaz Hussain v. The State and 4 others 2015 YLR 194 rel.

Fazal Amin for Petitioner.

Saeed Ahmad, Assistant A.G for the Official Respondents.

Habib-ur-Rahim for private respondents.

2023 Y L R 2556

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar, J

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 5 others---Petitioners

Versus

Haji NIAZ MUHAMMAD---Respondent

Civil Revision No. 169-M of 2023, decided on 2nd May, 2023.

Limitation Act (IX of 1908)---

----S. 5--- Condonation of delay---Bureaucratic hurdles---Scope---Petitioner/ defendant being Provincial Government assailed before Lower Appellate Court, judgment and decree passed by Trial Court in favour of respondent/plaintiff---Appeal filed by petitioner/defendant before Lower Appellate Court was dismissed for unexplained delay of more than four month---Validity---Delay of each day was to be explained properly and satisfactorily---It was no ground that matter was delayed because it had to pass through the hands of different officials due to which sufficient time was consumed---Law was the same for juristic person as well as natural person, individual or particular persons---Government was a juristic person and more responsibility and obligations were there on the part of government to be vigilant in filing of appeal within requisite period---If delay was occasioned or caused by an official/officer, he could be questioned, damages could be sought from him and he could be dealt with in accordance with law---Trial Court rightly appreciated facts of the case and decreed it in favor of respondent/plaintiff and Lower Appellate Court correctly dismissed the appeal---High Court declined to interfere in judgments and decrees passed by two Court below---Revision was dismissed, in circumstances.

East Pakistan v. Abdul Hamid Darfi and others 1970 SCMR 558; Federation of Pakistan v. Niaz Ahmad 1997 SCMR 959; Commissioner of Income Tax v. Rais Pir Ahmad Khan 1981 SCMR 37; Government of N.-W.F.P. and others v. Ahmad Shah and others 2007 YLR 1781; Province of Punjab through Secretary Education v. Kishwar Quaddus Paul 2004 SCMR 571; Muhammad Sharif Javaid Warsi's case PLD 2003 SC 6; Chairman, District Evacuee Trust, Jhelum v. Abdul Khaliq through Legal Heirs and others PLD 2002 SC 436; Government of The Punjab through Chief Secretary, Civil Secretariat, Lahore and others v. Muhammad Khan and another 2003 SCMR 829; Province of East Pakistan v. Abdul Hamid Darji and others 1970 SCMR 558; Government of Baluchistan v. Muhammad Ibrahim 2000 SCMR 1028; Government of N.-W.F.P. and others v. Abdul Malik 1994 SCMR 833; The Deputy Director Food v. Syed Safdar Hussain 1979 SCMR 45 and Custodian of Enemy Property v. Hoshank M. Dastur and others 1979 SCMR 191 rel.

2023 Y L R 2579

[Peshawar (Mingora Bench)]

Before Muhammad Naeem Anwar, J

MEHBOOB ALI---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 276-M of 2022, decided on 27th February, 2023.

(a) Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019)---

----Ss. 9(d) & 11(c)---Possession of narcotics---Safe custody and safe transmission of the samples---Scope---Completeness of the chain of custody is of utmost importance and any break therein or lapse in the control of possession of the samples would be sufficient to create a doubt regarding safe custody and safe transmission of the samples---In such eventualities, reliability of the positive Forensic Science Laboratory Report qua the samples lost its value and could not be relied upon for conviction of accused.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 rel.

(b) Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019)---

----Ss. 9(d) & 11(c)--- Possession of narcotics---Appreciation of evidence---Benefit of doubt---Safe custody of the recovered substances not established---Prosecution case was that 750 grams ICE was recovered from the possession of one accused, 783 grams ICE was recovered from the possession of other accused and 8231 grams charas in eight packets was recovered from their vehicle---Record showed that none of the prosecution witnesses had explained in their examination-in-chief that who had brought the samples to police station and when, and to whom the same were handed over for safe custody---Record showed that ASI/witness had taken only Murasila, card of arrest and recovery memo to police station but his statement was silent regarding the case property rather other ASI/witness, to whom the said documents were handed over by the police witness, admitted that along with Murasila neither case property nor the accused had been produced before him---Constable, who was carrier of the samples to Forensic Science Laboratory, in response to a question in his cross-examination, stated that the parcels were lying with Moharrir in his office---Moharrir recorded his statement only to the extent of handing over the samples to constable and did not utter a single word in his examination-in-chief that the samples had been given to him by Seizing Officer for safe custody---Said witness stated in his cross-examination that he had collected the parcels from Malkhana but admitted that he was not incharge of Malkhana meaning thereby that the samples had not been entrusted to him for safe custody---Thus, if it was presumed that the samples had been kept in Malkhana even then it was shrouded in mystery that who was responsible for safe custody of the samples---Obviously, neither name of the Muharrir or incharge of the Malkhana, to whom the samples had been handed over, could be ascertained from the entire record nor prosecution had examined him before the trial Court for confirmation of safe custody of the samples---Neither copy of the relevant page of Register No. 19 was available on record nor original thereof was produced before the Court to prove that the case property had ever been kept in Malkhana---Hence, the chain of safe custody of samples since the time of separation thereof from the contraband till handing over the same to carrier was broken which had vitiated reliability and conclusiveness of the Forensic Science Laboratory Report--- Appeal against conviction was allowed, in circumstances.

Zafar Khan and another v. State 2022 SCMR 864; Abdul Ghani and others v. The State and others 2019 SCMR 608 and Usman Shah v. The State 2022 YLR 821 rel.

(c) Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019)---

----Ss. 9(d) & 11(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Disparity in number of sample parcels---Effect---Prosecution case was that 750 grams ICE was recovered from the possession of one accused, 783 grams ICE was recovered from the possession of other accused and 8231 grams charas in eight packets was recovered from their vehicle---According to FIR, recovery memo and transit receipt, which was placed on file through an application after 16 months of the delivery of samples, total 10 parcels had been prepared regarding the samples on the spot, two pertaining to ICE while Parcel Nos. 4 to 11 contained the samples of 08 packets of charas but it was astonishing that constable/witness had carried only 04 parcels to Forensic Science Laboratory---Record showed that it was copiously clear from the statement of said witness that he had taken only four parcels containing samples of the recovered contraband whereas the report had been received about 10 samples---Such disparity floating on the surface of record created a serious doubt regarding genuineness of the samples and Forensic Science Laboratory Report more particularly when the transit receipt was placed on file at a belated stage without any plausible reason---Record reflected from record that application to Chemical Examiner of the Forensic Laboratory was moved by Seizing Officer though it was not his job at all when he had already parted with the case after making pointation of the place of recovery to Investigating Officer---Appeal against conviction was allowed, in circumstances.

(d) Criminal trial---

----Benefit of doubt---Principle---Slightest doubt occurring in prosecution case is sufficient to acquit the accused.

(e) Criminal trial---

----Benefit of doubt---Principle---Not necessary that there should be many circumstances creating doubts rather a 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.

Mst. Asia Bibi v. The State and others PLD 2019 SC 64; Tariq Pervaiz v. The State" 1995 SCMR 1345 and Ayub Masih v. The State PLD 2002 SC 1048 rel.

(f) Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019)---

----Ss. 9(d) & 11(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Contradictions in statements of witnesses---Effect---Prosecution case was that 750 grams ICE was recovered from the possession of one accused, 783 grams ICE was recovered from the possession of other accused and 8231 grams charas in eight packets was recovered from their vehicle---Minor contradictions in the statements of witnesses do creep with passage of time and could be ignored for safe administration of justice---However, disagreement of the witnesses in their deposition on almost each and every fact of the occurrence could be considered for testing their credibility and integrity---In the present case, not only the Seizing Officer had recorded a self-contradictory statement but most of his assertions had not been confirmed by the remaining witnesses---Thus, the statements recorded by the witnesses in the present case neither rang true nor appeared to be natural, hence, could not be considered for conviction of the accused persons---Appeal against conviction was allowed, in circumstances.

Hamza Nawab for Appellant/convict.

Raza Uddin Khan, A.A.G. for the State.

2023 Y L R 2599

[Peshawar (Bannu Bench)]

Before Fazal Subhan and Dr. Khurshid Iqbal, JJ

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

Versus

AQIL MUHAMMAD---Respondent

Criminal Appeal No. 86-B of 2023, decided on 4th May, 2023.

Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019)---

----Ss. 9(c), 15-AA, & 24---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4(2)---Criminal Procedure Code (V of 1898), S.417(2-A)---Possession and recovery of 1025 grams of Charas and a .30 bore pistol---Appeal against acquittal---Appreciation evidence of---Accused/ respondent was allegedly caught red-handed at a barricade which was laid by the Seizing Officer in wake of receiving spy information regarding trafficking of contraband by the accused---Validity---Seizing Officer being a star witness had admitted during the evidence that spy information was received at about 11:00 A.M. whereas time of occurrence was shown as 09:40 A.M. in the FIR, so when the occurrence had already taken place at 09:40 A.M., then how the information regarding involvement of the respondent/ accused in commission of the offence was received by the Seizing Officer at 11:00 A.M.---Stance of the Seizing Officer was also self-contradictory in the regard that, on the one hand, he was of the view that respondent/accused was trafficking contraband whereas, on the other hand, he claimed that he (accused) was busy in selling Charas while a customer was also present with him---Said stance of the Officer negated what he had mentioned in the FIR---Total quantity shown recovered was 1025 grams, while the marginal witness claimed the same as 150/240 grams in his cross-examination---Though the said contradiction was termed a mistake by the appellant, however, the same (contention) was baseless as the record was silent regarding any application having been made by the prosecution for the correction---Marginal witnesses, supposed to be present on the spot, were required to be aware of all the material aspects of the case, however, in the present case, the marginal witnesses even failed to disclose the exact quantity shown as recovered or even the place of recovery--- Seizing Officer and Investigating Officer were contradictory to each other regarding the time period which they spent together in connection with completion of investigation---Samples separated from the alleged recovered contraband, were sent to FSL after six(06) days whereas the R. 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, stipulated 72 hours from the recovery for completion of such exercise---Delay caused had not been plausibly explained, which could be considered as fatal to the prosecution case---Recovery of pistol was allegedly affected in a populous area but none from the general public present was cited as a witness---Though the Police Officials were as good witnesses as others, but when persons were available, then an attempt should have been made to ensure transparency---No Arms Expert was brought on record to confirm the working conditions of the weapon---Prosecution had failed to prove the charge against the respondent / accused beyond any reasonable doubt, in circumstances---Prosecution had to prove its case and if any inconsistency, loophole or contradiction arose, then its benefits had to be extended to the accused---Acquittal carried double presumption of innocence and the same could be reversed only when found to be blatantly perverse, illegal, arbitrary, capricious or speculative, shocking or resting upon impossibility---If there was a possibility of a contrary view, even then acquittal could not be set-aside---Appeal against acquittal was dismissed in limine, in circumstances.

State through Advocate-General Khyber Pakhtunkhwa, Peshawar v. Javed War 2021 YLR 662; Ahmed Ali and another v. The State 2023 SCMR 781 and State v. Ahmed Omar Sheikh 2021 SCMR 873 ref.

Hafiz Muhammad Hanif, Addl. A.G. for Appellant.

Respondent: In motion.

2023 Y L R 2629

[Peshawar]

Before Ishtiaq Ibrahim and Syed Arshad Ali, JJ

ABIDULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 311-P of 2022, decided on 22nd February, 2023.

(a) Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Presence of eye-witnesses at the spot justified--- Accused were charged for committing murder of the brother of complainant by firing and causing injuries to the complainant and his other brother---Record showed that the occurrence had taken place in front of the shop of complainant party---Presence of complainant, his brother/ injured along with deceased was natural and normally at evening time people did assemble at the shops, coupled with the fact that their house was situated at the distance of 200 paces from the shop as stated by complainant in his cross-examination---Complainant and injured eye-witness had attributed the effective role of firing at the deceased to accused with his 30 bore pistol---During spot inspection, Investigating Officer recovered two empties of 30 bore and also took into possession one bulb which was lit in front of the shop of complainant party at a height of ten feet at the time of occurrence---Case of the prosecution mainly rested on direct and substantive evidence of complainant and injured eye-witness, who witnessed the occurrence and narrated the same in confidence inspiring manner and despite of lengthy cross-examination, nothing had been elicited from their mouth which could favour the accused---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was accordingly dismissed.

(b) Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Delay of forty five minutes in lodging FIR explained plausibly---Accused were charged for committing murder of the brother of complainant by firing and causing injuries to the complainant and his other brother---Record showed that the report was promptly lodged by the complainant in injured condition in the hospital after 45 minutes of the occurrence which were consumed in calling the rescue services and reaching of the ambulance at the spot and other arrangements for shifting the dead body of the deceased as well as the injured persons---So the question of consultation and deliberation did not arise---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was accordingly dismissed.

(c) Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Night time occurrence---Sufficient source of light to identify assailants---Accused were charged for committing murder of the brother of complainant by firing and causing injuries to the complainant and his other brother---Record showed that the Investigating Officer took into possession one bulb, which was lit at the time of occurrence---In addition to the said bulb, the spot of occurrence was situated on main road, where besides the shop of complainant, there were many shops and residential houses and the bulbs installed in front of the shops and street lights available on the road could not be ruled out---In front of the complainant's shop a filling station, which remained open around the clock, had also been shown, where a number of bulbs were installed and were lit at the time of occurrence which showed that there was sufficient light on the spot of occurrence and ruled out question of non-identification of the accused by the complainant and eye-witnesses at the time of occurrence during dark hours of the night---Furthermore, complainant party and accused were co-villagers, as avowed by injured witness in his cross-examination that accused were well known to them being co-villagers, thus the question of mis-identification was not sustainable---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was accordingly dismissed.

(d) Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Recovery of crime empties and weapon of offence---Negative forensic report---Inconsequential---Accused were charged for committing murder of the brother of complainant by firing and causing injuries to the complainant and his other brother---In the present case, two empties of 30 bore pistol, recovered from the spot, were sent for forensic analysis---According to Forensic Science Laboratory Report the empties did not match with the pistol allegedly produced by the brother of accused---Trial Court had rightly held that Forensic Science Laboratory Report, in nature, was only corroborative and confirmatory or explanatory to the ocular or direct evidence---When prosecution had proved its case through ocular account, mere Forensic Science Laboratory Report, being negative, would not be fatal to the case of prosecution---Neither conviction nor acquittal could be based solely on the basis of opinion of Ballistic Expert---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was accordingly dismissed.

Yaqoob Shah's case PLD 1976 SC 53 rel.

(e) Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of the brother of complainant by firing and causing injuries to the complainant and his other brother---Perusal of the record transpired that none of the remaining accused had been allotted with a specific role as to which injury resulted due to the blow(s) inflicted by which one of the accused---To be more specific, injured witness sustained only one injury for which two accused had been charged---Similarly for three small abrasions sustained by complainant, two persons had been charged without specification that which of the injuries or blow had been inflicted by which one of the accused persons---Said fact gave rise to a reasonable doubt in mind, benefit of which should be given to the accused as a matter of right and not as a grace---Moreover, the injuries sustained by the injured were simple in nature, therefore, by extending benefit of doubt, the appeals were allowed and said two accused were acquitted of the charges levelled against them, in circumstances.

Shabbir Hussain Gigyani for Appellant.

Muhammad Nisar Khan, A.A.G. for the State.

Yousaf Shah Mohmand for the Complainant.

2023 Y L R 54

[Balochistan]

Before Abdullah Baloch, J

ABDUL GHAFFAR---Petitioner

Versus

FAIZI BIBI and 2 others---Respondents

Civil Revision No. 288 of 2020, decided on 6th December, 2021.

Succession Act (XXXIX of 1925)---

----S.272---Succession certificate---Tarka---Islamic law--- Deceased/government servant (issueless) was martyred during service and Government declared him Shahaeed and announced compensation amount for his legal heirs---Petitioner (brother/legal heir of the deceased/servant) filed suit against respondents (mother and two brothers of the deceased) that they had obtained succession certificate without impleading the petitioner as legal heir in the succession application and received the compensation amount accordingly---Suit was decreed by Civil Court, but the same was set aside by the appellate/District Court---Validity---Amount of compensation did not fall within the parameters of a Tarka, thus, no one could claim the same as matter of legitimate right---Revision petition was dismissed accordingly.

Wafaqi Hakoomat-e-Pakistan v. Awamunnas PLD 1991 SC 731; PLD 1991 SC 750 and Dr. Safdar Hussain and another v. Flt. Lt. Nadia Latif and others 2014 YLR 1553 rel.

Syed Manzoor Ahmed Shah and Mubasshir Hussan for Petitioner.

Muhammad Umar Doger for Respondents.

Saifullah Sanjarani, Assistant A.G. for the State.

2023 Y L R 81

[Balochistan]

Before Muhammad Ejaz Swati and Iqbal Ahmed Kasi, JJ

TALAL---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. (T) 05 of 2021, decided on 17th August, 2022.

(a) Control of Narcotic Substances Act (XXV of 1997)---

----S. 9(c)---Recovery of narcotics---Appreciation of evidence---Benefit of doubt---Safe custody---Contradictory statements---Withholding best evidence---Scope---Accused was convicted for having been found in possession of 8 kilograms of charas when his house was raided---Complainant had admitted during cross-examination that no identification marks were put on the recovered articles; that total recovered charas was weighed collectively but he was contradicted by another prosecution witness and that the raiding party was accompanied by a lady constable but she was not produced before the Court---Samples were allegedly handed over to the sample-bearer on the very next day of recovery but he stated that he had taken the samples after one and a half month of the day of recovery---Prosecution had failed to prove the chain of custody---Appeal was allowed and the accused was acquitted of the charge.

Mst. Sakina Ramzan v. The State 2021 SCMR 451 and Mst. Iqbal Bibi v. State 2000 PCr.LJ 1812 rel.

(b) Criminal trial---

----Benefit of doubt---Scope---Prosecution, in order to bring home guilt, must bring reliable evidence in support of its charge and a single doubt in the case against an accused would be sufficient to acquit him instead of existence of series of contradictions.

Minhaj Khan v. The State 2019 SCMR 326 rel.

Meiraj Ali for Appellant.

Sudheer Ahmed Baloch, Deputy Prosecutor General for the State.

2023 Y L R 107

[Balocshitan]

Before Muhammad Ejaz Swati and Rozi Khan Barrech, JJ

ABDUL NASIR and others---Appellants

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 150, 152 and Murder Reference No. 2 of 2021, decided on 7th June, 2021.

(a) Penal Code (XLV of 1860)---

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Delay of about six hours in lodging the FIR---Scope---Accused were charged for committing murder of parents of complainant and also injuring him by firing---Admittedly, there was a delay of about six hours in reporting the matter---Conduct and attitude on the part of the complainant appeared to be quite natural as the complainant detailed everything in a straightforward manner while recording the FIR---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt---Certain mitigating circumstances were found, thus while maintaining the convictions, death sentence was altered to imprisonment for life---Appeal was dismissed with said modification in sentence.

Muhammad Zubair v. State 2007 SCMR 437; Mushtaq Hussain and another v. State 2011 SCMR 45 and Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152 rel.

(b) Penal Code (XLV of 1860)---

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Ocular account supported by medical evidence---Scope---Accused were charged for committing murder of parents of complainant and also injuring him by firing---Ocular account of the occurrence had been furnished by complainant/injured and an eye-witness---Eye-witness narrated the whole story with regard to the occurrence and had correctly stated the time,date and manner in which the occurrence took place---Complainant had categorically identified the accused before the court---Said witnesses attributed the role of firing to the accused persons---Said witnesses gave a consistent and straightforward ocular account of the occurrence---Despite conducting extensive and lengthy cross-examination, nothing was brought on record which might significantly demonstrate that the account of said eye-witnesses was false or their presence at the scene of the crime was doubtful or distrustful---Presence of the said witnesses on the spot was also proved---On the same date, the Investigation Officer recorded the statement of eye-witness under S.161, Cr.P.C.---Complainant and eye-witness were real sons of the deceased persons---Witnesses were residents of the vicinity and they had given a plausible explanation for their presence at the spot at the relevant time---Medical evidence was in complete harmony with the ocular testimony of the complainant and eye-witness---No conflict could be pointed out to create a dent in the prosecution case---Medical evidence of the deceased and injured was produced by Medical Officer, who examined the dead bodies of the deceased, according to which the male deceased received three injuries of firearms and female deceased received one injury of fire-arm---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt, however, some mitigating circumstances were found, thus while maintaining the convictions, death sentence was altered to imprisonment for life---Appeal was dismissed with said modification in sentence.

(c) Criminal trial---

----Witness--- Interested and related witness--- Reliance--- Scope--- Mere relation of witness with the deceased was no ground to discard their testimonies if their evidence was found entirely independent and truthful, therefore, their testimony, without looking for any other corroborative evidence, would alone be sufficient to establish the charge---Evidence of related witnesses who were not found inimical and were confidence-inspiring would hardly need any corroboration.

(d) Penal Code (XLV of 1860)---

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction in---Recovery of weapon of offence and crime empties---Scope---Accused were charged for committing murder of parents of complainant and also injuring him by firing---Record showed that Kalashnikov was recovered on the pointation of the accused on 13.02.2020 beneath the stones from the mountains---Said Kalashnikov was recovered from an open area, and it was not recovered from exclusive possession of the accused or from the residence of the accused---Kalashnikov which was allegedly recovered on pointation of the accused and the crime empties recovered from the place of occurrence were not sent to the Firearm Expert for comparison or to determine whether it was in working condition and whether the empties allegedly recovered from the place of occurrence had been fired from the allegedly recovered Kalashnikov---In the absence of any positive report of the Forensic Science Laboratory, the recovery of crime weapon was inconsequential---In such circumstances, while maintaining the convictions, death sentence was altered to imprisonment for life---Appeal was dismissed with said modification in sentence.

(e) Penal Code (XLV of 1860)---

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Sentence, quantum of---Mitigating circumstances---Scope---Accused were charged for committing murder of parents of complainant and also injuring him by firing---Statement of accused recorded under S.342, Cr.P.C., showed that no question about the asserted motive was put to them---Some mitigating circumstances were noted in favour of the accused persons, firstly; the recovered crime weapon had been disbelieved; secondly, the prosecution had alleged a specific motive in the case but had failed to prove the same---Question of quantum of the sentence required utmost attention and thoughtfulness on the parts of the Courts---Not determinable as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence, which had resulted in the death of two persons, therefore the death sentence awarded to the accused was quite harsh---In such circumstances, while maintaining the convictions, death sentence was altered to imprisonment for life---Appeal was dismissed with said modification in sentence.

Mir Muhammad alias Miro v. The State 2009 SCMR 1188 and Haq Nawaz v. The State 2018 SCMR 21 rel.

(f) Criminal Procedure Code (V of 1898)---

----S. 342---Examination of accused---Scope---If a piece of evidence or a circumstance is not put to accused persons at the time of recording their statements under S.342, Cr.P.C., the same could not be considered against them.

Imtiaz alias Taju v. The State and others 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.

Taj Muhammad Mengal for Appellants.

Fazal-ur-Rehman, State Counsel.

2023 Y L R 162

[Balochistan]

Before Abdul Hameed Baloch, J

NAQEEBULLAH

and 2 others---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No. 390 of 2021, decided on 15th July, 2021.

(a) Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 365 & 34---Kidnapping or abducting with intent to secretly and wrongfully confine person, common intention---Bail, grant of---Scope---Allegation against accused persons was that they kidnapped the complainant on gun point but threw him after some time---Investigation of the case was complete---Accused persons were not required for further investigation---Punishment provided for the offence was seven years which did not fall within the purview of prohibitory clause of S. 497, Cr.P.C.---Accused persons had neither demanded ransom nor was there any allegation that they had harmed the complainant---Bail application was allowed, in circumstances.

Khawaja Salman Rafique v. National Accountability Bureau through Chairman PLD 2020 SC 456; Tariq Bashir v. The State PLD 1995 SC 34 and Muhammad Tanveer v. The State PLD 2017 SC 733 ref.

Khan Muhammad v. The State 2014 PCr.LJ 449; Shameel Ahmed v. The State 2009 SCMR 174; Siraj Ahmed v. The State 2010 MLD 165 and Muhammad Saleem Kamboh v. The State 2010 PCr.LJ 419 distinguished.

(b) Criminal Procedure Code (V of 1898)---

----S. 497--- Bail--- Scope--- Mere heinousness of offence is not enough to withhold bail.

Abdul Nafay v. The State 2019 YLR 183 rel.

(c) Criminal Procedure Code (V of 1898)---

----S. 497---Bail---Scope---Bail is not to be withheld as punishment---No legal or moral compulsion exists to keep the people in jail merely on the allegation that they have committed offence punishable with death or transportation for life, unless reasonable grounds appear to exist to disclose their complicity---Ultimate conviction and incarceration of a guilty person can repair the wrong caused by the mistaken relief of interim bail 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 v. The State PLD 1972 SC 81 ref.

(d) Criminal Procedure Code (V of 1898)---

----S. 497--- Bail--- Scope--- If offence did not fall within prohibitory clause of S. 497, Cr.P.C. bail was to be granted and refusal was an exception.

Muhammad Tanveer v. The State PLD 2017 SC 733 rel.

(e) Criminal Procedure Code (V of 1898)---

----S. 497---Bail---Benefit of doubt---Scope---Accused is entitled for benefit of doubt even at bail stage.

Muhammad Faisal's case 2020 SCMR 971 rel.

Syed Ayaz Zahoor and Tariq Mahmood Butt for Applicants.

Naimatullah, Prosecutor General and Wajahat Ghaznavi, State Counsel.

Abdul Wali Khan Nasar and Ayub Tareen for the Complainant.

2023 Y L R 180

[Balocshitan]

Before Abdul Hameed Baloch, J

ABDUL GHAFOOR---Petitioner

Versus

KHAIR BIBI and 3 others---Respondents

Civil Revision No. 259 of 2014, decided on 28th December, 2020.

(a) Transfer of Property Act (IV of 1882)---

----Ss. 122 & 123---Gift, essentials of---Proof of factum---Cancellation/ rectification of mutation entries---Respondent/plaintiff (pardanashin lady) denied gift stating that she never went to revenue office for transfer of her share in name of the brother of her predecessor-in-interest (alleged donee)---Concurrent judgments in favour of plaintiff--- Validity--- Witnesses of defendant admitted that the alleged donee died issueless who adopted two daughters and one son of Plaintiff---Son of plaintiff looked after the properties of alleged donee---None of the witnesses of defendant stated the date/year of gift deed, where such gift deed was prepared and in whose presence the possession was handed over to the alleged donee---Real mother could not deprive her sons and daughters from her properties and gift to issueless brother---No witness of transfer/mutation produced---Essentials of gift were missing---No witness deposed whether gift was written or oral---Donee had to prove the gift deed/mutation independently---Burden of proof lay on the beneficiary (petitioner/defendant) to prove the factum of valid gift through document/evidence which he failed to discharge the same---Revision petition was dismissed accordingly.

Allah Dita v. Manak alias Muhammad Siddique 2017 SCMR 402; Naveed Akram v. Muhammad Anwar 2019 SCMR 1095 and Wali Muhammad Khan v. Mst. Amina 2018 SCMR 2080 rel.

(b) Qanun-e-Shahadat (10 of 1984)---

----Arts. 117 & 118---When a person alleged that the illiterate/parda observing lady had gifted the properties, the burden of proof would lie on beneficiary of gift deed.

(c) Civil Procedure Code (V of 1908)---

----S. 115---Revisional jurisdiction---Scope---Evidence, possibility of different view of---Scope---High Court could not interfere in concurrent findings of courts below unless the judgments/orders of the courts would be found patently illegal and against the law---Different view of evidence could be taken by the courts below was no ground for setting aside of concurrent findings---Scope of revision was narrow and restrict only to the extent of correcting illegality/ irregularity of evidence of the courts below.

Mst. Kulsoom Bibi's case 2005 SCMR 135 ref.

2023 Y L R 373

[Balochistan]

Before Abdul Hameed Baloch, J

MUHAMMAD RAMZAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 47 of 2020, decided on 28th December, 2020.

(a) Penal Code (XLV of 1860)---

----Ss. 394 & 34---Robbery, common intention---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Scope---Accused was charged that he and co-accused made firing upon the complainant party, due to which uncle of complainant sustained injury and they also took Rs. 10,00,000/ from the dash board of the vehicle of complainant---Record showed that the statements of witnesses were not in line with each other---Complainant stated that after the occurrence they proceeded to the police station, while injured had not supported the contention of the complainant and stated that the police immediately reached at the site, took him to hospital---Complainant and injured were alleged to be eye-witnesses and seemed to be together at the time of occurrence but they narrated story differently---Statements of the prosecution witnesses were contradictory to each other---Such contradictions could not be unattended and it seemed that the witnesses were not accompanied each other---Even it could not be believable that the Bank official refused to deposit rupees one million---Contradictions of the witnesses could not be lightly ignored---Said witnesses stated that the bullet hit finger of right foot of injured witness---Investigating Officer took into possession sleeper which was not stained with blood---As per prosecution the accused made firing from short distance, while Medical Officer stated that the wound was at 90 angles---Another piece of evidence against the accused was pointation of the place of occurrence and recovery of motorcycle---Prosecution had neither recorded the statement of neighbour in order to confirm whether the house was owned by the accused, nor sought report from the revenue department in regard of ownership of the house---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Jabran v. The State 2020 SCMR 1493 rel.

(b) Qanun-e-Shahadat (10 of 1984)---

----Art. 40--- Recovery--- Recovery of incriminating material on the pointation of accused---Scope---Mere recovery on the pointation of accused could not fulfil the requirement of Art. 40 of the Qanun-e-Shahadat, 1984---Prosecution must prove the recovery independently.

(c) Criminal trial---

----Medical evidence---Scope---Medical evidence might confirm ocular account with regard to seat of injuries, kind of weapon used in commission of offence, nature of injuries, but it could not connect the accused with the commission of crime.

Abdul Rashid v. The State 2019 PCr.LJ 1456 rel.

(d) Penal Code (XLV of 1860)---

----Ss. 394 & 34---Robbery, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence---Reliance---Scope---Accused was charged that he and co-accused made firing upon the complainant party, due to which uncle of complainant sustained injury and they took Rs. 10,00,000/ from the dash board of the vehicle of complainant---Record showed that a pistol was recovered from the possession of accused---Report of Forensic Science Laboratory in respect of alleged recovered pistol was positive---Said evidence could not benefit the prosecution on two counts---Firstly, the prosecution had not sent the fired bullet secured from the place of occurrence to Forensic Science Laboratory---Report of Forensic Science Laboratory revealed that .30-bore pistol was presently in working condition/order---Secondly the alleged pistol was received by Forensic Science Laboratory after twenty days, without explanation that in intervening period the weapon was in whose possession---Prosecution was under legal obligation to prove safe custody---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

Ali Sher v. The State 2008 SCMR 707 rel.

(e) Criminal trial---

----Witness---Appreciation of evidence---Scope---If statement of a witness was disbelieved in respect of co-accused then the conviction could not sustain alone on the basis of statement of such witness unless they were corroborated by corroborative evidence which come from independent source and unimpeachable nature.

Akhtar Ali's case 2008 SCMR 6; Muhammad Asif's case 2017 SCMR 486 and PLD 2019 SC 527 rel.

(f) Criminal trial---

----Benefit of doubt---Principle---Persecu-tion was duty bound to prove its case beyond reasonable doubt---If any single and slightest doubt was create, the benefit of same must go to the accused.

(g) Criminal trial---

----Conviction--- Principle--- Conviction must be found on unimpeachable, trustworthy and reliable evidence and certainty of guilt.

Safdar Baloch alias Ali v. The State 2019 SCMR 1412 rel.

Syed Muhammad Tahir for Appellant.

Wajahat Khan Ghaznavi, State Counsel.

2023 Y L R 411

[Balochistan]

Before Abdullah Baloch, J

SHABBIR ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 1 of 2022, decided on 9th April, 2022.

(a) Penal Code (XLV of 1860)---

----S. 489-B---Using as genuine forged or counterfeit currency-notes or bank-notes---Appreciation of evidence---Benefit of doubt---Failure to conduct recovery proceedings on spot---Scope---Accused was convicted under S. 489-B, P.P.C., for using counterfeit currency notes as genuine---No recovery proceedings were carried out at the spot rather the accused was taken to the police station and thereafter police had conducted his personal search---No explanation was available on record as to why the recovery proceedings were not carried out at the spot and as to why his personal search was not conducted at the spot, which otherwise in such like cases was necessary---Recovered currency notes were not exhibited by the prosecution---Entire evidence produced by the prosecution appeared to be untrustworthy---Investigating Officer had conducted a poor investigation---Case of prosecution was doubtful, but unjustifiably the benefit of such doubts was not extended in favour of the accused---Impugned judgment was set aside and the accused was acquitted of the charge---Appeal was accepted.

(b) Criminal trial---

----Benefit of doubt---Scope---Accused is entitled to be extended benefits of doubt as a matter of right---Accused cannot be deprived of benefit of doubt, merely because there is only one circumstance, which creates doubts in the prosecution story.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Khuda-e-Noor for Appellant.

2023 Y L R 441

[Balochistan]

Before Abdul Hameed Baloch, J

SHAMS-UD-DIN and another---Petitioners

Versus

MUHAMMAD ALI and others---Respondents

Civil Revisions Nos. 40 and 109 of 2014, decided on 8th July, 2021.

(a) Civil Procedure Code (V of 1908)---

----S.12(2)---Fraud---Collusion---Scope---Collusion in judicial proceedings is a secret agreement between two person that one should institute a suit against the other in order to obtain a decree of judicial tribunal for some sinister purpose.

Munir Ahmad Khan v. Sami Ullah Khan 1986 CLC 2655; Zafarullah and others v. Dost Muhammad and others PLD 1984 Lah. 396 and Blacks Law Dictionary Fifth Edition rel.

(b) Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), Art. 117---Civil Procedure Code (V of 1908), Ss. 12(2) & 115---Suit for declaration and injunction---Fraud and misrepresentation---Proof---Petitioner sought setting aside of judgment and decree under S.12(2), C.P.C., passed in favour of respondent on the plea of fraud--- Validity--- Plea of fraud and misrepresentation were pre-conditions for application under S.12(2), C.P.C.---Whenever fraud and misrepresentation was alleged by a party, the particulars of fraud and misrepresentation with detail were to be mentioned in the application---Party who alleged fraud and misrepresentation was to bring detail facts of fraud on record---Party who alleged something must prove the same under Art. 117 of Qanun-e-Shahadat, 1984---Revision was dismissed, in circumstances.

Muhammad Bashir v. Province of Punjab 2003 SCMR 83; Mst. Izat and others v. Khuda Bakhsh PLD 1959 Kar. 221; Abdul Razzaq Hawaldar v. Sheikh Muhammad Shafi PLD 1962 SC 134; Allah Wassaya and 5 others v. Irshad Ahmad and 4 others 1992 SCMR 2184; Munir Ahmad Khan v. Sami Ullah Khan 1986 CLC 2655; Blacks Law Dictionary Fifth Edition; Mrs. Rubab v. Aftab Ahmed 2015 MLD 756; Imtiaz Ali v. Atta Muhammad PLD 2008 SC 462; City District Government Lahore v. Mian Muhammad Saeed Amin 2006 SCMR 676 and Provincial Corporative Bank Ltd. v. Secretary Government of Pakistan, Ministry of Defence NLR 2000 Civil 88 ref.

(c) Limitation Act (IX of 1908)---

----S. 5---Condonation of delay---Prescribed period of limitation---Principle---Where special or general law has itself prescribed period of limitation, provision of S. 5 of Limitation Act, 1908, is not applicable.

Allah Dino v. Muhammad Shah, 2001 SCMR 286 rel.

(d) Limitation Act (IX of 1908)---

----S. 5--- Condonation of delay---Preconditions---Explaining of delay---Scope---Where a party seeks condonation of delay, that party is required to explain each day's delay, as valuable right accrues to the other party and such right cannot be taken away lightly---Period of delay is condoned provided that the applying party succeeds to establish each day's delay was due to some unavoidable reason.

The Canara Bank Ltd. v. The Warden Insurance Co. Ltd. AIR 1935 Bombay 35; Abdul Ghaffar and others v. Mst. Mumtaz PLD 1982 SC 572; Ali Muhammad and another v. Fuai Hussain and others 1983 SCMR 1239; Collector of Customs (Appraisement) v. Messrs Saleem Adaya, Karachi PLD 1999 Kar. 76; Haji Muhammad Ashraf v. The State and 3 others 1999 MLD 330; Nasrullah Khan's case, 2020 SCMR 2101 and Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212 rel.

Adnan Ejaz for Petitioners (in Civil Revision No. 40 of 2014).

Rasool Bakhsh Baloch and Ayub Tareen, Additional Advocate-General for Respondents Nos. 1 to 13 (in Civil Revision No. 40 of 2014).

Ayub Tareen, Additional Advocate-General for Petitioners (in Civil Revision No. 109 of 2014).

Rasool Bakhsh Baloch for Respondents (in Civil Revision No. 109 of 2014).

2023 Y L R 473

[Balochistan]

Before Muhammad Aamir Nawaz Rana, J

FAQIR MUHAMMAD---Petitioner

Versus

MUHAMMAD YOUNAS and another---Respondents

Civil Revision No. 11 of 2022, decided on 12th August, 2022.

Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), Ss. 42, 54 & 55---Suit for declaration, mandatory and permanent injunction---Interim injunction, grant of---Scope---Petitioner assailed the concurrent dismissal of his application under O.XXXIX, Rr. 1 & 2, C.P.C.---Validity---Petitioner was seeking stay to the extent of property mentioned in the plaint, which as per his contention, was recorded in his favour as inherited property and separate (Tatima) also existed, inquiry conducted on the application of the petitioner in revenue hierarchy, prima facie was in favour of the petitioner---No justification before the fora below to reject the request of petitioner for grant of ad-interim stay, as prima facie, the petitioner had made out a case in his favour---Impugned orders passed by the courts below were set aside and the application so filed by the petitioner was allowed.

Ajmal Khan Kakar for Petitioner.

Abdul Sadiq Khilji for Respondent No.1.

Naseer-ud-Din Mengal, Additional Advocate General for Respondent No. 2.

2023 Y L R 527

[Balochistan]

Before Gul Hassan Tareen, J

PROJECT DIRECTOR UNIVERSITY OF LORALAI and another---Petitioners

Versus

ZARIF KHAN HUSSAINZAI AND BROTHERS through Managing Director---Respondent

Civil Revision No. 215 of 2022, decided on 15th August, 2022.

(a) Arbitration Act (X of 1940)---

----Ss. 20, 5 & 12---Application to file in court arbitration agreement---Authority of appointed arbitrator or umpire irrevocable except by leave of court---Power of court where arbitrator is removed or his authority revoked---Scope---Court shall make an order of reference to the arbitrator, named by the parties either in the arbitration agreement or in an arbitration clause of a contract---Until the authority of an appointed arbitrator has not been revoked with leave of the Court under S. 5 of the Arbitration Act, 1940, and/or where an appointed arbitrator has not been removed by the Court under S. 12(2) of the Arbitration Act, 1940, a duly named arbitrator cannot be substituted by the Court in proceedings under S. 20 of the Arbitration Act, 1940.

Dar Okaz Printing and Publishing Limited Liability Company v. Printing Corporation of Pakistan Private Limited PLD 2003 SC 808; Mst. Surriya Rehman through Attorney v. Siemens Pakistan Engineering Company Ltd. PLD 2011 Kar. 571 and Pakistan Trading Company v. M.M. Isphani, Ltd. and another PLD 1960 Dacca 81 rel.

(b) Arbitration Act (X of 1940)---

----Ss. 20, 5 & 12---Application to file in court arbitration agreement---Authority of appointed arbitrator or umpire irrevocable except by leave of court---Power of court where arbitrator is removed or his authority revoked---Scope---Unless an arbitrator is not removed by the Court on the application of any party to a reference, a Court cannot remove or substitute an appointed arbitrator.

(c) Arbitration Act (X of 1940)---

----Ss. 8 & 12---Power of court to appoint arbitrator or umpire---Power of court where arbitrator is removed or his authority revoked---Scope---Unless an arbitrator fails to use all reasonable dispatch in entering on and proceeding with the reference and making an award, an appointed arbitrator cannot be removed or substituted---Likewise an arbitrator may be substituted and Court may appoint a new arbitrator where an appointed arbitrator neglects or refuse to act or is incapable of acting or dies---New arbitrator can be appointed by the Court on the application of a party made under subsection (2) of S. 8 & S. 12 of the Arbitration Act, 1940.

Saad Salahuddin Kakar for Petitioners.

Qari Rehmatullah for Respondent.

2023 Y L R 555

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

MUHAMMAD USMAN and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. 30 of 2020, decided on 14th June, 2022.

(a) Penal Code (XLV of 1860)---

----Ss. 302(b), 201 & 34---Qatl-i-amd, causing disappearance of evidence of offence, giving false information to screen defenders, common intention---Appreciation of evidence---Sentence, reduction in---Recovery of weapon of offence, crime empties and dead body---Scope---Accused were charged for committing murder of the brother of the complainant by firing---Pistol and crime empty were not sent to Forensic Science Laboratory for matching, therefore, simple recovery of weapon and crime empty could not be considered as corroborative piece of evidence---However, the recovery of dead body of the deceased was strong corroborative evidence---Appeal was partly allowed and conviction of the accused was converted from S. 302(b), P.P.C. to S. 302(c), P.P.C. and his sentence was reduced from life imprisonment to fifteen years---Conviction and sentence of the other accused under S. 302(b), P.P.C. was set aside and he was convicted under S. 201, P.P.C. and sentenced to suffer rigorous imprisonment for five years.

Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Sharif v. The State PLD 2009 SC 709 rel.

(b) Penal Code (XLV of 1860)---

----Ss. 302(b), 201 & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, causing disappearance of evidence of offence, giving false information to screen defenders, common intention---Appreciation of evidence---Sentence, reduction in---Confessional statement of accused persons---Scope---Accused were charged for committing murder of the brother of the complainant by firing---Confessional statements of the accused persons recorded by the Judicial Magistrate---Record prepared by the Judicial Magistrate as well as his deposition proved conclusively that he took all precaution to ensure that confession was voluntarily---Accused besides admitting commission of the offence also stated about the motive---Evidence relating to confession did not reflect inducement, threat or promise and could not be kept out of consideration, merely on the ground that it was recorded after fifteen (15) days of arrest of the accused persons---Appeal was partly allowed and conviction of the accused was converted from S. 302(b), P.P.C. to S. 302(c), P.P.C. and his sentence was reduced from life to fifteen years, in circumstances---Conviction and sentence of the other accused under S. 302(b), P.P.C. was set aside and he was convicted under S. 201, P.P.C. and sentenced to suffer rigorous imprisonment for five years.

Khuda Bukhsh v. The State 2004 SCMR 331 and Shaukat Ali v. The State and others PLD 2019 SC 577 rel.

(c) Penal Code (XLV of 1860)---

----Ss. 302(b), 201 & 34---Qatl-i-amd, causing disappearance of evidence of offence, giving false information to screen defenders, common intention---Appreciation of evidence---Sentence, reduction in---Motive was proved---Scope---Accused were charged for committing murder of the brother of the complainant by making firing---Case of the prosecution with regard to motive of offence was entirely based on the confessional statement of the accused---Admittedly, confessional statement was to be taken as a whole and not in piecemeal---Accused in his confessional statement specifically stated about the motive that the deceased carnally assaulted him more than once on gun point, therefore, he planned for committing his murder by taking pistol from his cousin---Confessional statement of the accused revealed that he alone made a plan for committing murder for which he had taken pistol from his cousin, because the deceased carnally assaulted him more than once on gun point---No other evidence with regard to motive of the offence was available except the confessional statement of the accused, which brought the ease of the accused within the preview of S. 302(c), P.P.C.---Co-accused had neither been involved in the planning of the offence nor he had taken any part in commission of the offence in furtherance of common intention---Said accused was well aware that the offence of murder had taken place---Said accused by his action and conduct concealed the evidence of commission of that offence to save the accused from being punished and thereby caused disappearance of evidence of the offence, thus guilty of offence under S. 201, P.P.C.---Appeal was partly allowed and conviction of the accused was converted from S. 302(b), P.P.C. to S. 302(c), P.P.C. and his sentence was reduced from life to fifteen years, in circumstances---Conviction and sentence of the other accused under S.302(b), P.P.C. was set aside and he was convicted under S. 201, P.P.C. and sentenced to suffer rigorous imprisonment for five years.

Shamoon alias Shamma v. The State 1995 SCMR 1377; Naseer Hussain v. Nawaz and others 1994 SCMR 1504 and Muhammad Mumtaz v. Mehtab and another 2020 SCMR 200 rel.

Amir Jan Kakar for Appellants.

Ms. Noor Jahan Khaoor, Additional Prosecutor General for the State.

2023 Y L R 629

[Balochistan]

Before Muhammad Ejaz Swati and Abdullah Baloch, JJ

MUHAMMAD AYAZ---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeals Nos. 31, 281 and Criminal Revision Petition No. 19 of 2021, decided on 24th March, 2022.

(a) Penal Code (XLV of 1860)---

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Accused was charged for committing murder of the brother of complainant by firing---Motive behind the occurrence was stated to be a dispute over a relation between the deceased and family of accused to which the arbitrators tried to resolve the matter, but the accused murdered the deceased---Comparative study of direct evidence produced through eye-witnesses while the circumstantial evidence produced through other two witnesses established the fact that the accused due to matrimonial dispute committed the murder of deceased---Eye-witnesses were in line with each other giving each and every detail of the occurrence---Said witnesses remained consistent in their testimonies---Both the eye-witnesses correctly identified the accused in the Trial Court as assailant, who committed the murder of deceased through pistol---Both the said witnesses correctly stated the date, time and the place of occurrence as well as the manner, in which the occurrence had taken place---Testimonies of said witnesses were tested through cross-examination by the defence, but they remained consistent in their statements and the prosecution had failed to give any slightest dent or jolt to their testimonies---Besides, the occurrence had taken place during the day light, thus there was no occasion for mistaken identity of the accused---Complainant being the real brother of deceased would never raise his finger on innocent leaving the actual and real culprits scot-free, who committed the murder of his brother---Circumstances established that the prosecution had succeeded in proving the charge against the accused through direct, circumstantial and medical evidence---Appeal being devoid of merits, was dismissed, in circumstances.

(b) Penal Code (XLV of 1860)---

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Related and interested witness---Scope---Accused was charged for committing murder of the brother of complainant by firing---Allegedly, one of the eye-witnesses was interested witness and the case of prosecution was lacking independent corroboration---Mere relation of witness with the deceased was no ground to discard his testimony, if his evidence was found entirely independent and truthful, therefore, his testimony without looking for any other corroborative evidence would alone be sufficient to establish the charge---Legally, the evidence of related witness who was not found inimical and was confidence-inspiring would hardly need any corroboration---Circumstances established that the prosecution had succeeded in proving the charge against the accused through direct, circumstantial and medical evidence---Appeal being devoid of merits, was dismissed.

Haji Ali Shan v. The State 2001 PCr.LJ 1320 and Allah Ditta v. The State PLD 2002 SC 52 rel.

(c) Penal Code (XLV of 1860)---

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Recovery of weapon of offence and crime empties---Reliance---Scope---Accused was charged for committing murder of the brother of complainant by firing---Record showed that soon after the occurrence the Investigating Officer visited the place of occurrence and collected three empties from the place of occurrence---Subsequently, the accused was arrested and from his possession, 9mm pistol was effected---Both the empties and the 9mm pistol were sent to Forensic Science Laboratory for analysis---Forensic Science Laboratory Report was received in affirmative confirming that not only the crime weapon was in working condition, but also the empties so collected from the place of occurrence were fired from the said pistol---Circumstances established that the prosecution had succeeded in proving the charge against the accused through direct, circumstantial and medical evidence---Appeal being devoid of merits, was dismissed, in circumstances.

(d) Penal Code (XLV of 1860)---

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Motive was proved---Scope---Accused was charged for committing murder of the brother of complainant by firing---Motive behind occurrence had also been established, which was over a matrimonial dispute in between the accused with his wife and his wife due to such reasons took shelter into the house of his uncles and the deceased being her maternal cousin, due to which deceased was murdered by the accused---Trial Court had rightly convicted and sentenced the accused after proper appraisal of available record---Circumstances established that the prosecution had succeeded in proving the charge against the accused through direct, circumstantial and medical evidence---Appeal being devoid of merits, was dismissed, in circumstances.

Hazrat Ali Kakar for Appellant (in Criminal Jail Appeal No. 31 of 2021).

Ameer Hamza Mengal, D.P.G. for the State (in Criminal Jail Appeal No. 31 of 2021).

Amanullah Kakar for the Complainant (in Criminal Jail Appeal No. 31 of 2021).

Hazrat Ali Kakar for Appellant (in Criminal Jail Appeal No. 281 of 2021).

Ameer Hamza Mengal, D.P.G. for the State (in Criminal Jail Appeal No. 281 of 2021).

Amanullah Kakar for the Complainant (in Criminal Jail Appeal No. 281 of 2021).

Amanullah Kakar for Petitioner (in Criminal Revision Petition No. 19 of 2021).

Ameer Raza Mengal, D.P.G. for the State (in Criminal Revision Petition No. 19 of 2021).

Hazrat Ali Kakar for Accused (in Criminal Revision Petition No. 19 of 2021).

2023 Y L R 658

[Balochistan]

Before Muhammad Aamir Nawaz Rana, J

Syed ALI AKHTAR---Applicant

Versus

Syed MURTAZA and another---Respondents

Criminal Bail Cancellation Application No. 286 of 2022, decided on 15th August, 2022.

Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 498---Penal Code (XLV of 1860), S. 324---Cancellation of bail---Attempt to commit qatl-i-amd---Scope---Complainant sought cancellation of pre-arrest bail granted to accused in an FIR lodged under S. 324, P.P.C.---Accused was alleged to have caused a fire arm injury resulting in distal femur fracture---Prima facie, that version of complainant was supported by Medico Legal Certificate; further, the footage of CCTV also supported the version of the complainant--- Accused had pointed pistol towards the complainant and pressed the trigger; whether he had intention to kill or not was the question which could be determined by the Trial Court but prima facie, an act had been committed causing homicidal injury---Order passed by Trial Court was not sustainable, same was set aside and bail granted to the accused was recalled, in circumstances.

Sheqab Muhammad v. The State 2020 SCMR 1486; Muhammad Nadeem v. Muhammad Khurram Iqbal 2022 SCMR 1168 and Muhammad Ismail v. The State 2022 SCMR 707 rel.

Jahanzeb Khan v. Umer Zahid 2022 SCMR 726; Muhammad Baqir v. The State 2022 SCMR 363; Syed Hamad Raza v. The State 2022 SCMR 640; Abdul Jabbar v. Sardar Khan Rind 2020 YLR 1077; Azra Bibi v. The State 2017 PCr.LJ Note 96; Muhammad Idress v. The State 2021 MLD 877; Meeran Bux v. The State PLD 1989 SC 347 and Samiullah v. Laiq Zada 2020 SCMR 1115 ref.

Syed Ayaz Zahoor and Muhammad Akram Shah for Applicant.

Iftikhar Ahmed Langove and Jam Saka Dashti for Respondent No.1.

Fazal-ur-Rehman, State Counsel for the State.

2023 Y L R 680

[Balochistan]

Before Abdullah Baloch, J

MUHAMMAD IBRAHIM---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 9 of 2021, decided on 25th March, 2022.

(a) Penal Code (XLV of 1860)---

----Ss. 392 & 34---Robbery, common intention---Appreciation of evidence---Benefit of doubt---Accused were charged for snatching tractor, cash amount, a Mobile Phone and one wrist watch from the complainant---Complainant of the case while appearing as witness mostly reiterated the contents of his fard-e-bayan---Statement of complainant transpired that he was intercepted by five unknown muffled face persons who snatched his tractor, cash amount, a Mobile Phone and one wrist watch---Fact remained that the contents of fard-e-bayan and the statement of complainant recorded by the Trial Court were silent with regard to physique, structure and complexion of the culprits---Both the statements were silent with regard to role played by each accused individually or severally---Complainant stated nothing in the Trial Court that either he identified the accused as one of the culprits or otherwise--- 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)---

----Ss. 392 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Robbery, common intention---Appreciation of evidence---Benefit of doubt---Test identification parade---Scope---Accused were charged for snatching tractor, cash amount, a Mobile Phone and one wrist watch from the complainant---Record transpired that during investigation the identification parade of the accused was carried out under the supervision of Judicial Magistrate---Complainant identified the accused during identification parade as one of the culprits, who had snatched his tractor and other valuables---Record showed that at the time of commission of crime, all the accused persons had masked their faces---Question arose that if all the culprits were muffled faces and more particularly the occurrence had taken place in the dark of night then as to how the complainant could identify the accused as one of the culprits---Identification of the accused during the Trial Court and keeping mum whilst recording his Court statement created sufficient doubts in a prudent mind---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.

(c) Penal Code (XLV of 1860)---

----Ss. 392 & 34---Robbery, common intention---Appreciation of evidence---Benefit of doubt---Accused was caught red handed---Scope---Accused were charged for snatching tractor, cash amount, a Mobile Phone and one wrist watch from the complainant---In the present case, the only evidence remained in the field against the accused was that he was caught red handed whilst driving the snatched tractor, however, the fact remained that the prosecution had failed to bring any evidence to connect the accused with the commission of committing robbery or snatching the tractor of complainant---Even otherwise, the statement of sole eye-witness i.e. complainant was not confidence inspiring, thus the ocular account furnished was ruled out of consideration---After ruling out the ocular account the other circumstances of the case providing corroboration or support to the ocular account had automatically collapsed---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.

Faqeer Muhammad v. Shehbaz Ali 2016 SCMR 1441 rel.

Muhammad Khair Mengal for Appellant.

Fazal ur Rehman, State Counsel the State.

2023 Y L R 737

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar and Gul Hassan Tareen, JJ

GHULAM HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.(s) 53 of 2022, decided on 11th August, 2022.

(a) Control of Narcotic Substances Act (XXV of 1997)---

----S. 9(c)--- Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4---Transportation of narcotics---Dispatch of sample for test or analysis---Appreciation of evidence---Benefit of doubt---Safe custody---Contradictory statements---Scope---Accused was alleged to have been intercepted while transporting 28 kilograms of charas---Prosecution's evidence was silent as to the fact that who had taken the representative sample to the analyst---Investigating Officer had not produced the register of the Malkhana and no evidence was produced to prove safe transmission of the contraband from the police to the Chemical Examiner---Prosecution case was full of contradictions---Samples taken from each packet was in negligible quantity (01 gram)---Sealing of 28 samples in one parcel was not safe for conviction of the accused---Samples were not separated on the spot of recovery---Recovery from the impounded car was also doubtful---Prosecution had failed to bring home the charge against the accused beyond reasonable shadow of doubt---Trial Court had failed to properly appreciate the evidence and the law---Appeal was allowed and the accused was acquitted of the charge, in circumstances.

(b) Control of Narcotic Substances Act (XXV of 1997)---

----S. 36--- Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4---Reports of Government Analysts---Dispatch of sample for test or analysis--- Expression "reasonable quantity"---Scope---Section 36 of Control of Narcotic Substances Act, 1997, does not specify any particular quantity of recovered substance to be sent as a sample, however, the Rule 4(1) of Control of Narcotic Substances (Government Analysts) Rules, 2001, directs that reasonable quantity of sample from the recovered contraband/ substances seized shall be drawn on the spot of recovery and dispatched to the officer in charge of nearest Narcotic Testing Laboratory---Only one gram (negligible quantity) cannot be termed a "reasonable quantity" for the purpose of chemical analysis.

(c) Control of Narcotic Substances Act (XXV of 1997)---

----S. 9---Possession of narcotics---Safe custody---Scope---If safe custody of narcotics and its transmission through safe mode is not established, the same cannot be used against the accused.

Mst. Razia Sultana v. The State and another 2019 SCMR 1300 and The State through Regional Director, ANF v. Imam Bakhsh and others 2018 SCMR 2039 ref.

Adnan Ejaz Sheikh for Appellant.

Abdul Mateen, Deputy Prosecutor General for the State.

2023 Y L R 778

[Balochistan]

Before Zaheer-ud-Din Kakar and Muhammad Aamir Nawaz Rana, JJ

AJAB KHAN and 3 others---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No. 89 of 2022, decided on 11th August, 2022.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 386, 392, 506 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Theft after preparation made for causing death, hurt or restraint, robbery, criminal intimidation and common intention---Bail, grant of---Failure to conduct identification parade---Effect---Accused persons were alleged to have snatched the complainant's vehicle as well as mobile phone and demanded extortion---Two of the accused persons were nominated in the FIR while the name of other two had surfaced through supplementary statement that too on the basis of affidavit submitted by the complainant---No identification parade was conducted---Case against later persons fell within the ambit of further inquiry, as such, they were admitted to bail while the application to the extent of nominated accused persons was dismissed.

Riaz Ahmed Soomro for Applicants.

Muhammad Naeem Kakar, Additional Prosecutor General for the State.

2023 Y L R 824

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

ASFAND YAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 332, Murder Reference No. 9 and Civil Miscellaneous Application No. 126 of 2017, decided on 31st March, 2021.

(a) Penal Code (XLV of 1860)---

----Ss. 302 & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Medical evidence---Scope---Accused was charged for making firing upon his brothers and mother, due to which his two brothers died, while his mother and one brother sustained firearm injuries---Motive behind the incident was that the accused quarrelled and tortured his wife, thus his brothers scolded him, where after the accused had divorced his wife and for such divorce he was holding responsible to the injured persons---Medical Officer examined the injured mother and injured brother of accused and after examination issued Medico-Legal Certificates, which confirmed that both the injured received bullet injuries on their persons---Prosecution case was also supported by the Forensic Science Laboratory Reports of blood stained clothes of deceased as well as other blood stained articles and the inquest report of deceased prepared by the Investigating Officer---Even otherwise, the defence had not disputed the unnatural death of deceased and injuries received by the injured witnesses, but pleaded his implication---Circumstances established that the prosecution had proved its case against the accused, however, while maintaining the conviction, death sentence was converted into imprisonment for life, in circumstances---Appeal was dismissed with said modification in sentence.

(b) Penal Code (XLV of 1860)---

----Ss. 302 & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Ocular account---Scope---Accused was charged for making firing upon his brothers and mother, due to which his two brothers died, while his mother and one brother sustained firearm injuries---Ocular account of the incident had been furnished by complainant, injured witnesses and dwellers of the house---Complainant in his court statement mostly reiterated the contents of fard-e-bayan and confirmed the presence of accused inside the house, when the occurrence had taken place---Complainant had brought on record that after repeated ring bells, the accused opened the main gate of the house and he found injured his mother and three brothers, however, on query his mother disclosed that the accused by means of pistol injured them---As per assertions of his mother, the complainant nominated the accused in the promptly lodged FIR---Prompt lodging of FIR had ruled out the element of consultation and deliberation---Even otherwise, it was not acceptable for a prudent mind that a person might falsely implicate his own brother leaving scot free the real culprits---Witness was cross-examined at sufficient length, but complainant remained consistent in his view---One of the widows of deceased being dweller of the house where occurrence had taken place appeared as witness, her presence at the relevant time was natural and was beyond any shadow of doubt---Said witness stated that accused made firing upon her husband, due to which he sat down---Statement of said witness was fully supported and corroborated by other widow, who was also the dweller of the said house, where the incident had taken place---Presence of widow in the house was natural and could not be doubted---Circumstances established that the prosecution had proved its case against the accused---However, while maintaining the conviction, death sentence was converted into imprisonment for life---Appeal was dismissed with said modification in sentence.

(c) Penal Code (XLV of 1860)---

----Ss. 302 & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Statements of injured witnesses---Scope---Accused was charged for making firing upon his brothers and mother, due to which his two brothers died, while his mother and one brother sustained firearm injuries---Record showed that both the injured witnesses had not supported their earlier statements, thus were declared hostile---According to one of the injured witnesses, at the relevant time, his sons quarrelled with each other and made firing upon themselves---Said injured witness showed her ignorance as to who was the aggressor---Though, said witness was declared hostile, but still her statement was supporting the case of prosecution to the extent of dispute, quarrelling and making firing, which confirmed that the assailant was the accused---Other injured witness fully disowned his earlier statement and stated that the same was self-recorded by the police---Two sons of injured lady had been murdered and the assailant was her third son, thus after losing her two sons, said witness would certainly not lose her third son and alike was the situation with the other injured, who had lost his two brothers, hence, it was the sole reason that they had disowned their earlier versions and supported the defence version---Prosecution had established the presence of the accused in armed condition in the house as well as proved the presence of natural witnesses in the house---Injured witnesses did not support each other being resiled witnesses---Injured witness admitted in cross-examination that he was injured and shifted to hospital for treatment, he also admitted that he had pardoned the accused to his extent---Such admissions of the said injured witness supported the version of the prosecution---Circumstances established that the prosecution had proved its case against the accused, however, while maintaining the conviction, death sentence was con-verted into imprisonment for life---Appeal was dismissed with said modification in sentence.

(d) Penal Code (XLV of 1860)---

----Ss. 302 & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Related and interested witnesses---Scope---Accused was charged for making firing upon his brothers and mother, due to which his two brothers died, while his mother and one brother sustained firearm injuries---Unnatural violent death of deceased and causing bullet injuries to injured persons were not disputed by the defence---Thus, under the circumstances complainant and dwellers of the house, could not be termed to be interested witnesses---More particularly, the husbands of said dwellers of the house as well as the brother of complainant were murdered in a brutal manner, thus the presumption of false implication of accused being the member of same family was not acceptable to a prudent mind---Beyond imagination that the witnesses might falsely implicate a family member for the murders of the blood relations---Accused, throughout the proceedings had not taken any justifiable explanation with regard to his false implication nor brought any ill-will or ulterior motives for his false implication by the witnesses and specially against the said dwellers of the house, who being natural witnesses directly witnessed the crime---Circumstances established that the prosecution had proved its case against the accused, however, while maintaining the conviction, death sentence was converted into imprisonment for life---Appeal was dismissed with said modification in sentence.

(e) Penal Code (XLV of 1860)---

----Ss. 302 & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Quantum of sentence---Scope---Accused was charged for making firing upon his brothers and mother, due to which his two brothers died, while his mother and one brother sustained firearm injuries---In the present case, there existed a family dispute in between the family members of the said house and also the accused had divorced his wife---On the relevant date the quarrel had taken place all of a sudden without the element of pre-mediation and further two family members of the said house had also lost their lives---High Court observed that awarding of capital punishment to the accused was unwarranted, which other increased the sorrow of grieved family, hence, while maintaining the conviction, death sentence was converted into imprisonment for life---Appeal was dismissed with said modification in sentence.

Barrister Zahoor Hassan Jamote for Appellant.

Habibullah Gul, Additional Prosecutor General for the State.

Syed Hazrat Shah for injured/ PW-4 Shano Begum.

2023 Y L R 882

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdul Hameed Baloch, JJ